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Automobile Accident Frequently Asked Questions

Serving Baltimore City, and 24 Counties in Maryland

Free Initial Consultation and NO Fees or Costs Unless We Win

Baltimore auto accident attorney Marc Atas handles car accidents that occur in the Baltimore-Washington area. Our firm has handled thousands of auto accidents cases in Maryland and settled cases for many more where clients were injured. Baltimore Attorney Marc Atas is a highly-skilled attorney based in Baltimore, Maryland who represents individuals throughout Maryland who have been involved in an Auto Accident.

Automobile Accident Frequently Asked Questions

Auto Accident Attorney Marc J. Atas has compiled a list of the most frequently asked questions. If your question is not answered here, please feel free to contact us the question and we will be happy to answer it.

How do I get my vehicle repaired?

If you are involved in an accident and the accident was not your fault, then you may get your vehicle repairs paid for either by the insurance company for the person who caused the particular accident or you may be able to get the vehicle repairs paid for under your own insurance policy. If the person who caused the accident, admits fault quickly then it is always best to get the vehicle fixed under their insurance policy.

If the person at fault does not admit that they are at fault quickly, then you can get the vehicle fixed under your collision coverage of your policy, subject to a deductible. If your insurance company pays under the collision portion of your policy they will then attempt to get their money back from the person at fault in the accident and will also get you back your deductible.

When your own insurance company fixes the vehicle under the collision section of your policy, this can result in your insurance rates going up in the future unless your insurance company is able to recoup the money they paid from the other insurance company.

Decision regarding getting the vehicle repaired usually need to be made quickly.If the damage is relatively minor and the vehicle is repairable, then it would be prudent to wait until the at fault drivers insurance company has accepted responsibility. If the vehicle is not drivable, but it is not in a tow lot and you are not being charged storage, then you can either wait a reasonable period until the other insurance company accepts liability or proceed under your own insurance. While tho other parties insurance will provide a rental once they accept responsibility, your own insurance company will not provide a rental unless you purchased rental coverage. In addition if it is determined that the at fault driver has no insurance, then your insurance company will fix your vehicle under the uninsured motorist portion of your policy and will also provide a rental even if you do not have rental coverage under your insurance policy.

If your vehicle is in a tow lot, then the decision about which insurance to use becomes more immediate. If the Insurance for the at fault driver takes to long to make a liability decision as to who was at fault or you cannot determine who was at fault because you need the police report or to contact witnesses, then if you have collision coverage under your own policy,let your own insurance can take care of the tow and storage charges, car damages as well as a rental if you have that coverage until the at fault parties responsibility can be determined. If you do not have collision coverage , then you need to  pay the tow bill and storage charges quickly yourself. The reason you should not wait more than a couple of days when the car is in a storage lot is because, even if the other insurance company accepts liability, they will only be resonsible for storage charges for a reasonable period of time which is usually a couple of days. If the car is left in storage for more than a few days, then you may be responsible for the balance of the storage bill. In addition if the vehicle is in a government run tow lot, it may be auctioned off after in is in storage for more than 30 days.

Once the vehicle is in the shop to be repaired, normally the insurance company will authorize a rental car until the car is fixed.

 

How to Prove Uninsured Motorist In Maryland

Md. COURTS AND JUDICIAL PROCEEDINGS Code Ann. § 10-921 (2011)

§ 10-921. Burden of proof in uninsured motorist coverage actions.
(a) In general. — In an action against an insurer or the Maryland Automobile Insurance Fund under a policy providing uninsured motor vehicle liability coverage, the person asserting the uninsured status of a motor vehicle shall have the burden to prove that status. (more…)

HOW DOES THE INSURANCE DETERMINE THE VALUE OF A TOTAL LOSS ?

 When your vehicle is involved in a serious accident, you may find out that the insurance company has decided to declare your vehicle a total loss. Whether an Insurance Company declares a vehicle a total loss is governed by Maryland law and is not arbitrarily left up to the Insurance Company. A vehicle is a total loss according to Maryland Law if [(9) “Total loss” means the condition of a motor vehicle for which:(a) The cost of repairs equals or exceeds:(i) The actual cash value of the motor vehicle as calculated in accordance with Regulation .04 of this chapter; or(ii) A percentage of the actual cash value of the motor vehicle established by the insurer and calculated in accordance with Regulation .04 of this chapter; or(b) The total cost to repair the motor vehicle, plus the estimated cost of potential repairs from hidden damage, plus any anticipated rental coverage, may equal or exceed:(i) The actual cash value of the motor vehicle as calculated in accordance with Regulation .04 of this chapter; or(ii) A percentage of the actual cash value of the motor vehicle established by the insurer and calculated in accordance with Regulation .04 of this chapter.

What happens if I do not want my vehicle totaled?

The process seems arbitrary when dealing with the Insurance Company on the issue of the value for the total loss of your vehicle. However it should not be arbitrary and there is a specific procedure and formula spelled out in the Code of Maryland Regulations. Rather than following the requirements of the State regulation the Insurance Companies have been hiring outside vendors who allegedly go on the internet and find similar vehicles for sale. Often if you follow up on their paperwork you realize that few if any of the alleged vehicles are actually for sale. In addition  state regulations do not recognize the insurance company outside vendor method of evaluating total losses.

The Code of Maryland Regulation Maryland Insurance administration section:31.15.12.02B9 defines when a vehicle is a total loss:

(9) “Total loss” means the condition of a motor vehicle for which:

(a) The cost of repairs equals or exceeds:

(i) The actual cash value of the motor vehicle as calculated in accordance with Regulation .04 of this chapter; or

(ii) A percentage of the actual cash value of the motor vehicle established by the insurer and calculated in accordance with Regulation .04 of this chapter; or

(b) The total cost to repair the motor vehicle, plus the estimated cost of potential repairs from hidden damage, plus any anticipated rental coverage, may equal or exceed:

(i) The actual cash value of the motor vehicle as calculated in accordance with Regulation .04 of this chapter; or

(ii) A percentage of the actual cash value of the motor vehicle established by the insurer and calculated in accordance with Regulation .04 of this chapter.

                In laymen’s terms a vehicle is a total loss when the value of the vehicle is less than the cost to repair the vehicle.

Code of Maryland Regulation Maryland Insurance administration section:31.15.12.03 thru 31.15.12.07 provide regulations on how to determine the value of a total loss and Insurance Companies must follow these regulations or be subject to penalties from the Insurance Commissioner. 1. An offer on a total loss must be made within 10 days of an Insurance company accepting liability. 2. The insurer’s minimum offer, subject to applicable deductions, shall be: A. The total of: (1) The retail value for a substantially similar motor vehicle from a nationally recognized valuation manual or from a computerized data base that produces statistically valid fair market values for a substantially similar vehicle as defined in Regulation .02B(7) of this regulation; and (2) Regardless of whether the claimant retains salvage rights, the applicable taxes and transfer fees pursuant to COMAR 11.11.05; or B. The total of: (1) A quotation for a substantially similar motor vehicle obtained by or on behalf of the insurer from a qualified dealer at a location reasonably convenient to the claimant; and (2) Regardless of whether the claimant retains salvage rights, the applicable taxes and transfer fees pursuant to COMAR 11.11.05.

Insurance companies regularly violate this provision by refusing to use Kelly Blue Book or NADA evaluations or failing to at least take these into consideration when valuing a total loss. They say they are complying by using an outside service that represents a computerized data base that produces statistically valid fair market values for a substantially similar vehicle, however it does not appear to be a data base but a system that compares values by making calls. Further rarely is a quotation from a qualified dealer at a location reasonably convenient to the claimant.

  1. Once a total loss offer is made the Insurance company must provide you the basis for the offer including any deductions made for the condition of the vehicle and mileage deductions.
  2. You as the Owner of the vehicle have a right to reject the Total loss offer and make a counter offer based upon the following factors: (a) Dealer quotations for a substantially similar motor vehicle; (b) Advertisements for a substantially similar motor vehicle; or (c) Any other source of valuation for a substantially similar motor vehicle.
  3. If an insurer rejects a claimant’s counteroffer for the total loss made pursuant to §A(2) of this regulation, the insurer shall, within 5 business days, send to the claimant a written explanation in clear and understandable language of why the information relied on by the claimant in the counteroffer does not provide a more accurate valuation than the information relied on by the insurer in its offer.

If you are not happy with the Insurance Company offer for your total loss claim than you should contact dealers in your area for a written estimate asking them what they would sell a car just like yours was before the accident if they had one on their lot. If the dealer has a similar car in similar condition and mileage on their lot, than that would be the best evidence of total loss value. Finally if all else fails, you can look in the newspaper or on the internet for vehicles similar to yours in mileage and conditions and present them to The Insurance Company.

.03 Duties of Insurer Following Determination of Total Loss of Motor Vehicle.

  1. The deadlines set by §§B—D of this regulation do not apply to a claim for damage that results in the total loss of a motor vehicle if:

(1) There is a good faith dispute as to the obligation of the insurer under the contract; or

(2) There are factors beyond the control of the insurer that prevent the insurer from complying with the deadlines set by §§B—D of this regulation, including a vehicle that is limited in production, specialty in nature, or older than 10 model years at the time of the total loss.

  1. First-Party Claimants—In General. Except as provided in §C of this regulation, within 10 business days after an insurer determines that a motor vehicle of a first-party claimant is a total loss, the insurer shall:

(1) Make an offer of a cash settlement pursuant to Regulation .04 of this chapter; or

(2) If authorized by the policy, replace the motor vehicle pursuant to Regulation .07 of this chapter.

  1. First-Party Claimants—Unrecovered Theft Loss. In the case of an unrecovered theft loss of the motor vehicle of a first-party claimant, an insurer shall make an offer for the total loss within the later of:

(1) 30 days after receipt of notification of a claim; or

(2) The time provided in the policy.

  1. Third-Party Claimants. Within 10 days after an insurer determines that a motor vehicle of a third-party is a total loss, the insurer shall make an offer of a cash settlement pursuant to Regulation .04 of this chapter.

 

Total loss

Code of Maryland Regulation Maryland Insurance administration section:31.15.12.04

.04 Cash Settlement.

If an insurer elects to make a cash settlement for the total loss of a motor vehicle pursuant to Regulation .03 of this chapter, the insurer’s minimum offer, subject to applicable deductions, shall be:

  1. The total of:

(1) The retail value for a substantially similar motor vehicle from a nationally recognized valuation manual or from a computerized data base that produces statistically valid fair market values for a substantially similar vehicle as defined in Regulation .02B(7) of this regulation; and

(2) Regardless of whether the claimant retains salvage rights, the applicable taxes and transfer fees pursuant to COMAR 11.11.05; or

  1. The total of:

(1) A quotation for a substantially similar motor vehicle obtained by or on behalf of the insurer from a qualified dealer at a location reasonably convenient to the claimant; and

(2) Regardless of whether the claimant retains salvage rights, the applicable taxes and transfer fees pursuant to COMAR 11.11.05.

Code of Maryland Regulation Maryland Insurance administration section:31.15.12.05

 

Code of Maryland Regulation 31.15.12.02B7

(7) “Substantially similar motor vehicle” means a motor vehicle that, in comparison to a damaged motor vehicle:

(a) Is the same make and model as the damaged motor vehicle;

(b) Is the same year as, or a more recent year than, the damaged motor vehicle;

(c) Contains at least the same major options as the damaged motor vehicle;

(d) Is in a condition substantially similar to or better than the condition of the damaged motor vehicle immediately before the damage occurred; and

(e) Has mileage that is within the greater of 4,000 miles or 10 percent of the mileage on the damaged motor vehicle at the time that the damage occurred unless the vehicle is limited in production, specialty in nature, or older than 10 model years at the time of total loss.

 

.05 Contents of Settlement Offer.

  1. In General. A settlement offer made by an insurer pursuant to Regulation .04 of this chapter shall:

(1) State the amount being offered;

(2) Inform the claimant that, on request from the claimant, the insurer shall provide the claimant in writing:

(a) A copy of the settlement offer;

(b) The method used to arrive at the value of the motor vehicle, including identification of any books, manuals, or databases used;

(c) A detailed explanation of the insurer’s calculation of the motor vehicle’s total loss value, including the calculation of any value added to the motor vehicle by options;

(d) A list of all deductions that will be made from the value of the motor vehicle; and

(e) A copy of the inspection guidelines relied on by the insurer to determine the condition of the vehicle at the time of the loss; and

(3) Inform the claimant that the claimant may, in writing, reject the settlement offer and make a counteroffer in accordance with Regulation .06 of this chapter.

  1. If a claimant makes a request under §A(2) of this regulation, the insurer shall provide a response within 7 business days of the date of the request.

 

Code of Maryland Regulation Maryland Insurance administration section:31.15.12.06

.06 Response by Claimant to Settlement Offer.

  1. In General. After receipt of a settlement offer, a claimant may:

(1) Accept the offer; or

(2) In writing, reject the offer and make a counteroffer based on:

(a) Dealer quotations for a substantially similar motor vehicle;

(b) Advertisements for a substantially similar motor vehicle; or

(c) Any other source of valuation for a substantially similar motor vehicle.

  1. Duty of Insurer. If an insurer rejects a claimant’s counteroffer made pursuant to §A(2) of this regulation, the insurer shall, within 5 business days, send to the claimant a written explanation in clear and understandable language of why the information relied on by the claimant in the counteroffer does not provide a more accurate valuation than the information relied on by the insurer in its offer.

Code of Maryland Regulation Maryland Insurance administration section:31.15.12.07

.07 Replacement of Motor Vehicle.

If an insurer elects to replace a motor vehicle pursuant to Regulation .03B(2) of this chapter and the insurance policy provides authority for the replacement as an acceptable method of settlement, the insurer shall provide the claimant with a motor vehicle that is:

  1. A substantially similar motor vehicle;
  2. Immediately available; and
  3. Subject to any deductible, paid for by the insurer.

CAN I MAKE A DIMINISHED VALUE CLAIM?

  1. What is a diminished value claim?

If your car is in a serious accident, which requires substantial repairs, and despite those repairs, the car is worth less after successful repairs, than the car was worth before the accident took place you may be entitled to make a diminished value claim. Obvious examples include frame damage done to a new car. A purchaser of a used car is not willing to pay as much for a used car with previous frame damage even if repaired as they would for the same used car with no prior accident history. While it seems logical that this would be true for all cars that have previously been in an accident, the diminished value claim is the exception rather than the rule.

  1. Will the Insurance Company automatically offer the diminished value claim as part of the offer for your property damage?

The simple answer is no!  An insurance company will never bring up the issue of diminished value unless asked. More likely even if suggested, they will deny the remedy applies. However more insurance companies now have a specific unit that now deals exclusively with diminished value claims. For the Insurance companies that do not have a diminished value claim unit, it can be difficult to negotiate the diminished value claim.

  1. How do you prove a diminished value claim?

The best way to prove a diminished value claim is to hire an automobile appraiser who has an expertise in evaluating diminished value claims. The insurance company has appraisers who do these estimates for the insurance company and you should have an appraiser that does the same thing for your side. Just like any other injury this is not an agreed upon science and each side is likely to have a different opinion. The insurance company opinion is likely to be favorable to the insurance company so you need an appraiser likely to be favorable to your position.

  1. When should I make a diminished value claim?

Hiring an expert can be costly ($350.00 or more), so you need to make sure the claim is not frivolous. Factors favorable to a successful diminished value claim include:

  1. The newer the car the more likely prior damage will affect the future value of the car
  2. The more extensive the damage
  3. Body damage vs. frame or mechanical damage
  4. Make of car
  5. The most relevant Maryland case on diminished value claims is William Kruvant v. Christopher Dickerman ,18 Md App 1,  305 A.2d 227(1973)

The measure of damages applied to a motor vehicle which has not been entirely destroyed has been clearly enunciated. In Taylor v. King, 241 Md. 50, 54-55, 213 A.2d 504, 507 (1965), the Court of Appeals said:

“… the rule in Maryland with respect to the measure of damages for injury to a motor vehicle, which has not been entirely destroyed, is the reasonable cost of the repairs necessary to restore it to substantially the same condition that it was in before the injury, provided the cost of repairs is less than the diminution in market value due to the injury. And when the cost of restoring a motor 3*3 vehicle to substantially the same condition is greater than the diminution in market value, the measure of damages is the difference between its market value immediately before and immediately after the injury.” (Footnote omitted.)

While Taylor establishes the standard by which we measure damages, it is silent as to burden of proof. It tells us that in order to determine the amount of recovery it is necessary to know at least three facts: the cost of repairs, the value of the vehicle immediately before the injury, and the value of the vehicle immediately after the injury. But it does not tell us whether the owner of the damaged vehicle or the party who caused the damage must prove those facts.

Supported by the concurrence of textwriters and other state courts, we conclude that the appropriate rule with respect to the burden of proof in a case involving damage to a motor vehicle which has not been destroyed is that the owner of the damaged vehicle has the burden of proving his damage, and may do so by proving either the cost of repairs or the diminution in the value of the vehicle after the damage in order to establish a prima facie case. The party causing the damage then has the burden of showing that the plaintiff’s evidence is not the proper measure of damages by offering evidence that the option not pursued by the owner would cost him less.

The appellee contends that certain language in Fred Frederick Motors v. Krause, 12 MdApp. 62, 277 A.2d 464 (1971), has determined the issue and has placed the burden 7*7 of proving both the cost of repairs and the value of the vehicle immediately before and after the collision on the plaintiff. We do not agree. In Krause, this Court recognized that the language of the Taylor requirement, that the repairs restore the automobile to “substantially the same condition” that it was in before the injury, neither defined nor described fully that condition. The Court noted that the phrase was susceptible to two interpretations: either the car could be restored to its previous physical appearance and mechanical function, or it could be restored to its market value before the injury. In an effort to clarify Taylor, the Court said,

“Therefore, if the plaintiff can prove that after repairs his vehicle has a diminished market value from being injured, then he can recover in addition to the cost of repairs the diminution in market value, provided the two together do not exceed the diminution in value prior to the repairs.” 12 MdApp. at 66-67, 277 A.2d at 467. (Emphasis added.)

In Krause, the Court was concerned only with an explication of the measure of damages enunciated in Taylor and not with an assessment of the burden of proof.

While the Krause rule does require the owner of the damaged vehicle to prove diminuted market value after repairs, it contains no such requirement with respect to proof that the cost of repairs coupled with the diminution in market value does not exceed the diminution in value prior to the repairs. Indeed, in our view, for the reasons set forth above, when a plaintiff has established a prima facie case by proving his damage, according to one acceptable measure of damage, it becomes the obligation of the defendant to offer evidence that the damage would be less under a different acceptable measure of damage.

In the instant case, the appellants sued for the cost of repairs, loss of the use of the vehicle, and a decrease in the value of the vehicle after repairs. The appellee admitted negligence, and the sole issue of damages was tried to a jury with Judge James F. Couch, Jr. presiding. It appears from 8*8 the record that the appellants had purchased their 1960 Mercedes Benz 220 SE coupe on May 22, 1969, approximately three weeks prior to the accident. They paid $2,400 for it, which was assumed to be its value immediately before the accident. After the accident, the appellants were charged $1,820.29 for repairs associated with the accident, an amount which a qualified expert testified was fair and reasonable. They paid $60 for rental of a car during the twelve days the car was being repaired, also an amount which a qualified expert testified was fair and reasonable. The appellants introduced no evidence as to the market value of the automobile immediately after the accident and before the repairs. They unsuccessfully attempted to qualify an expert to testify as to the value of the car after repairs. At the conclusion of the appellants’ case, Judge Couch ruled that the appellants had not established a prima facie case with respect to damages for injury to the vehicle or diminution of the value of the car after repairs and directed a verdict for $61: $60 for loss of use of the vehicle during the period of repair and $1 nominal damages. We remand the case for retrial as to the amount of damages for injury to the vehicle under the principles set forth herein.

With respect to appellant’s claim for damages for the diminution in the value of the vehicle after repairs, one further issue should be resolved for the guidance of the lower court. Maryland Rule 1085. The question concerns the qualification of the expert witness offered by the appellants to testify on the diminuted value after repairs.

In Pennsylvania Thresherman and Farmers’ Mutual Casualty Insurance Co. v. Messenger, 181 Md. 295, 302, 29 A.2d 653, 656 (1943), the Court of Appeals said:

“It is a general rule of evidence, quite liberally applied by the courts of this country, that anyone familiar with the value of property is competent to testify as to its value. If a person shows that he has sufficient personal knowledge of motor vehicles to make relevant his opinion regarding the value of the motor vehicle in question, the credibility and 9*9 weight of his testimony are for the consideration of the jury. Alabama Power Co. v. Armour & Co., 207 Ala. 15, 92 So. 111.”

In commenting upon the type and degree of knowledge which a witness must possess in order to be entitled to testify on the value of property, Wigmore states:

“The uncertainty arises from the fact that observation or knowledge of a thing involves, in these instances, two elements: acquaintance with the object or article itself, and acquaintance with the class of things into which it is desired to put the object. For example, knowledge of the value of a horse involves, first, a knowledge of the values of the different grades of horses, and, secondly, knowledge of the appearance and qualities of the particular horse, and the operation of estimating its value consists in comparing it with the several possible classes or grades and then placing it in one of them. It follows that the observation or knowledge necessary in such cases is twofold, — knowledge of values generally or the conditions affecting values, and knowledge of the thing to be valued.” Wigmore on Evidence, § 558 at 638 (3d ed. 1940).

In the instant case, Mr. Samuel Ladden, the owner and operator of the automobile repair shop at which appellants’ car was repaired, qualified as an expert in the repair of automobiles and testified as to the cost of repairs. The appellants then attempted to qualify him as an expert to testify on the value of the vehicle after repairs. Mr. Ladden testified that in addition to having been in the repair business for some 21 years, he also was a licensed used car salesman and had run a used car lot for 13 years. He said that at the time of the trial he had about 20 cars for sale, including a number of Porsches and Volkswagens, a number of Chevrolets “ranging from 1956 through 1969,” a 1971 Dodge Coronet and “a couple of MGs.” He stated that 10*10 incidental to the type of work he did, he had become involved in the inspection and appraisal of certain types of unique and classic automobiles and that he had himself purchased and resold such cars on a number of occasions and had assisted his customers in obtaining such automobiles. He indicated that he thought he was familiar with the market values of used motor vehicles in his locality. On cross-examination, Mr. Ladden was asked when he had last had a 1960 Mercedes Benz 220 SE coupe on his lot for sale. He replied, “I have never had one on my lot for sale, and they are very, very rare.” Immediately thereafter, Judge Couch sustained appellee’s objection to the witness’s qualification as an expert to testify to the diminution in the value of appellants’ vehicle after repairs.

We feel that Mr. Ladden was qualified to offer his opinion as to the value of the vehicle after repairs. His testimony established that the 1960 Mercedes Benz 220 SE coupe was a rare and unique automobile; that he had knowledge of and acquaintance with the class of unique and classic automobiles and their values generally in the locality; and that, having repaired the vehicle in question, he had intimate knowledge of the condition of the specific automobile to be valued. The fact that he himself had neither purchased nor sold a 1960 Mercedes Benz 220 SE coupe properly affects the weight accorded his opinion, but it does not affect his competency as an expert and should not have disqualified him. Smith v. Armstrong, 121 Mont. 377, 198 P.2d 795 (1948)Leider v. Pitock, 15 N.J. Super. 592, 83 A.2d 796, 797 (1951)Wigmore on Evidence, § 714 at 46, § 716 at 54 (Chadbourn Rev.); Jones on Evidence, § 14:50 at 730 (6th ed. 1972). Nor should his failure to indicate knowledge of comparable sales bar his testimony. First National Realty Corp. v. State Roads Comm’n., 255 Md. 605, 613-14, 258 A.2d 419, 423-24 (1960)Turner v. State Roads Comm’n., 213 Md. 428, 433, 132 A.2d 455, 457 (1957). In our view, the experience and knowledge of Mr. Ladden was such that he was entitled to testify. We have no doubt that his opinion would aid the trier of fact. Consolidated Mechanical Contractors Inc. v. Ball, 263 Md. 328, 338, 283 A.2d 154, 158 (1971)Sun Cab Co. 11*11 v. Walston, 15 MdApp. 113, 141-43, 289 A.2d 804, 820-21 (1972), aff’d, 267 Md. 559, 298 A.2d 391 (1973).

 

241 Md. 50 (1965)

213 A.2d 504

TAYLOR
v.
KING

[No. 7, September Term, 1965.]

Court of Appeals of Maryland.

Decided December 21, 1965.

51*51 The cause was argued before PRESCOTT, C.J., and HAMMOND, HORNEY, OPPENHEIMER and McWILLIAMS, JJ.

Hugh A. McMullen and William H. Geppert, with whom were Gunter & Geppert on the brief, for the appellant.

Fred H. Anderson, with whom were Anderson, Mullen & Bowen on the brief, for the appellee.

HORNEY, J., delivered the opinion of the Court.

This appeal, arising out of a suit for damages resulting from a collision of motor vehicles, presents a question as to which method should be used in computing the amount of damages for injury to an automobile which was not completely destroyed.

The automobile operated by a son of William R. King (the appellee) was struck in the rear and extensively damaged by a motor vehicle operated by George N. Taylor (the appellant). Since no defense was made by the appellant as to his liability, the only question before the lower court was the amount of damages to be awarded the appellee for the injury to his automobile.

It appears from the record that the appellee had purchased a new automobile about two months prior to the accident for $3192.49 and that at the time of the accident it was worth $3127.43. The only estimate obtained as to the cost of repairing the automobile totaled $1118.21, but the appellee decided not to repair the automobile and sold it for salvage for $975 which was the highest of several offers he received. The lower court entered a judgment of $2182.43 — the difference between the value of the automobile prior to the accident and its value after the accident established by deducting the salvage price from the depreciated value and adding the towing charge of $30.

The main contention of the appellant is that the lower court erred in awarding damages in that the award should only have been $1148.21 — the estimated cost of repairs plus the towing charge. The appellant asserts that “where a motor vehicle is damaged but can be fully repaired for less than the market value of the automobile after it is repaired, then the true measure of 52*52 damages is the cost of repairing the motor vehicle.” The appellee contends that “the basic rule for the measure of damages for partial destruction of or injury to [an automobile] is the difference in value of the [automobile] immediately before and after the injury but an alternative measure is reasonable cost of repairs necessary to restore it to its former condition.”

Although the parties have stated different rules, the point of disagreement between them, on the question of the measure of damages, is not which rule should be applied but rather the issue is whether the automobile of the appellee could reasonably have been restored, by repairing it, to substantially the same condition that it was in before the accident. The measure of damages advanced by the parties is said to be the difference between the market value of the automobile immediately before the injury and its market value immediately after the injury if the automobile cannot be “fully repaired,” as the appellant phrased it, or “restored to its former condition,” as the appellee expressed it.

On the question as to whether the damaged automobile could reasonably have been restored by repairs to substantially the same condition that it was in before the accident, there are insufficient facts to make a determination. The only evidence in the record which is even close to being relevant to the issue is the testimony of the appellee who, in reply to a question as to why he did not have the automobile repaired, stated that “in the case where a frame and body structure have to be straightened to the extent that this car would have to be straightened [he] felt that by straightening those members the car would have been weakened more and would not have been put in a safe acceptable condition for future use.” Although it appears that the appellee was possibly qualified to testify as an expert witness, in view of the fact that he had been for many years the supervisor of maintenance, repairs and purchasing for the trucking division of a trucking company and had had responsibilities in respect to repairing and maintenance of the company vehicles, his testimony was not sufficient positive evidence of whether the automobile could or could not be restored by being repaired to substantially the same condition that it was in before the accident, at reasonable costs. Evidence should have been presented 53*53 as to how extensively the frame and body were damaged and whether these conditions could or could not have been corrected. Since we cannot make a determination of the question of fact, we shall, pursuant to Maryland Rule 871 a, remand the case without affirmance or reversal for the taking of additional evidence limited to the question of whether the automobile could have been substantially restored at reasonable cost by repairing the injury sustained as a result of the collision.

Although this might be a sufficient disposition of the case under ordinary circumstances, we think that the parties, having asserted conflicting rules of law, are entitled to a concise statement of the law when there is a question as to which method should be used in computing the amount of damages for injury to an automobile which was not completely destroyed. See Rule 885.

In Western Maryland R.R. v. Martin, 110 Md. 554, 73 Atl. 267 (1909), where injury had been done to household furniture by water which the defendant negligently caused to overflow on to the property of the plaintiff, this Court promulgated the rule that the measure of damages would be the cost of repairing the furniture if it was merely damaged and would be its value at the time of its destruction if it was entirely destroyed.

In the subsequent case of W.B. & A. Ry. v. Fingles, 135 Md. 574, 109 Atl. 431 (1920), an action brought for damage to an automobile, the Court, in considering a question as to the measure of damages for the injury, said at p. 579 (citing Corpus Juris) that “the measure of damages for injury to personal property, which has not been entirely destroyed, * * * is the cost of repairing the property together with the value of the use of the property during the time it would take to repair it.”

In Fisher v. City Dairy Co., 137 Md. 601, 113 Atl. 95 (1921), where suit was also brought to recover damages for injury to an automobile, the Court reiterated the rule stated in the Fingles case, as the applicable law, and specifically rejected an instruction which informed the jury “that the true measure of plaintiffs’ damages in this case,” where, as the Court pointed out, the automobile was not destroyed by the collision, and the car was capable of being repaired, at a reasonable cost, was “the 54*54 difference between the value of the plaintiffs’ automobile immediately preceding the accident complained of and its value immediately thereafter.”

And in Mullan v. Hacker, 187 Md. 261, 49 A.2d 640 (1946), where the action concerned the recovery of damages to an automobile garage as a result of an excavation on adjoining property, it was said that the measure of damages was the cost of repairing the garage if it could be restored to the condition it was in before the injury without cost disproportionate to the injury and that when the cost of restoration is greater than the diminution in market value, the measure of damages is the difference between the value of the property before and after its injury. The rule is as applicable to personal property as it is to real property. See Superior Construction Co. v. Elmo, 204 Md. 1, 102 A.2d 739 (1954).

Until now, we have not had to consider a case in which there was a possibility that the injured automobile could not be restored to its prior condition.

The various statements in Martin, Fingles, Fisher and Mullan make it clear that the rule in Maryland[1] with respect to the measure of damages for injury to a motor vehicle, which has not been entirely destroyed, is the reasonable cost of the 55*55repairs necessary to restore it to substantially the same condition that it was in before the injury, provided the cost of repairs is less than the diminution in market value due to the injury. And when the cost of restoring a motor vehicle to substantially the same condition is greater than the diminution in market value, the measure of damages is the difference between its market value immediately before and immediately after the injury. In addition, the measure of damages may include a reasonable allowance for loss of use of the vehicle.

Remanded without affirmance or reversal for the taking of additional evidence and a redetermination of the amount of damages in conformity with this opinion; the costs to abide the outcome.

[1] The courts are far from being in accord as to what the rule in this area ought to be. There are several rules and numerous variations of some of them. To discuss them at length and compare the difference between them would require a footnote considerably longer than this opinion which in the end would probably serve no useful purpose. Most of the cases decided prior to 1956 are referred to in the footnotes (70 through 89) to an article on the subject by James Fleming, Jr., entitled DAMAGES IN ACCIDENT CASES, published in 41 Cornell Law Quarterly, at p. 593. Other cases not referred to in the article or decided since publication, include Wright v. Capital Transit Co., 35 A.2d 183 (D.C. Mun. Ct. Appls. 1943)Hemminger v. Scott, 111 A.2d 619 (D.C. Mun. Ct. Appls. 1955)Knox v. Akowskey, 116 A.2d 406 (D.C. Mun. Ct. Appls. 1955)Teitsworth v. Kempski, 127 A.2d 237 (Del. 1956)The Nyland, 164 F. Supp. 741 (D.C. Md. 1958)Falter v. City of Toledo, 158 N.E.2d 893 (Ohio 1959)Alber v. Wise, 166 A.2d 141 (Del. 1960)Sanft v. Haisfield, 178 A.2d 791 (Pa. Super. 1962); and Brewer v. Drain, 192 A.2d 532 (D.C. Ct. of Appls. 1963).

 

What is PIP?

PIP stands for Personal Injury Protection and is insurance coverage which is paid by the insurance company for the vehicle that you were in at the time of the accident or if you were a pedestrian the vehicle that may have struck you. PIP pays medical expenses and/or lost wages up to $2,500.00 unless in your policy PIP benefits exceed $2,500.00. These benefits are paid no matter who is at fault, as long as your policy carries the coverage. If your medical expenses or lost wages exceeds $2,500.00 PIP will not pay anything over the $2,500.00 limit.

PIP coverage normally covers , if not waived, the owner of the vehicle, any resident relatives of the owner, drivers of the vehicle who have permission of the owner to use the vehicle, guests in the vehicle, passengers in the vehicle, pedestrians struck by the insured vehicle, and persons getting in or out of the vehicle or in close proximity to the vehicle and having a nexus to vehicle.

PIP is typically paid directly to the medical provider, so that if the medical expenses exceed $2,500.00 and are paid to the doctor, then there will be no PIP benefits available for lost wages. If you need to collect your lost wages immediately, then inform your Baltimore auto accident attorney that you would like the PIP benefits to be used for your lost wages first, instead of paying the doctors first.

Not every automobile Insurance policy has PIP coverage.There is no PIP coverage for state owned or local government owned vehicles, taxi cabs and buses.

In addition PIP coverage can be waived meaning you can tell the insurance company you do not want to but PIP coverage and if you sign a waiver, then there will be no PIP coverage covering your vehicle for the owner of the vehicle and anyone who is a resident relative of the owner of the vehicle.

Finally there is no pip coverage when the vehicle driven by someone who is involved in an accident that was intentional by the driver, the driver stole the vehicle, the driver had an accident while committing a felony, or the driver was fleeing and eluding the police.

Medical expenses covered must be reasonable, must be causally related to accident, must be incurred within three years of the accident and must be for healthcare or funeral expenses.

PIP claims must be presented in writing to the insurance company on PIP forms provided by the insurance company within one year. Failure to file the written claim on the proper form within the one year will result in denial of your PIP claim.

Pip claims must be paid within 30 days or incur interest charges.Presentation of lost wage or medical claims can easily take 30 days, so if you need the lost wages , you should file for them as quickly as possible. see attached link for PIP claims made by pedestrians

Does my lawyer have to pay medical bills or my health insurance company

Does my lawyer have to pay my medical and hospital bills or my health insurance company from my accident case.

You may also want to read Rule 1.15(d) of the Rules of Professional Responsibility, which requires an attorney to safeguard property in which the client or a third party has an interest. If the rule applies to your case, you may be hearing from the attorney grievance commission if you comply with the client’s request.

Check MLRPC 1.15 and the annotations thereto.  AGC v. Mungin, 439 Md. 290, 96 A.3d 122 (2014) is on point, stating that a lawyer violates that rule if, among other things, the lawyer fails to pay a client’s debt from settlement funds.  The word “debt” is far broader than “lien” or “subrogation claim”.  Tell client that if you obey her wishes, your license is in jeopardy. Interpleader is the proper procedure

You would indeed be “on the hook” if you remit the funds to your client without paying Rawlings or the plan.  The FEHBA plan’s subrogation claim comes from the health insurance contract.  See 5 C.F.R. § 890.106.  Moreover, the subrogation claim is governed by federal law, and not state law.  Id., subsection (m).

“[I]t is one of the familiar rules of equity that a contract to convey a specific object even before it is acquired will make the contractor a trustee as soon as he gets a title to the thing.”  Barnes v. Alexander, 232 U.S. 117, 121 (1914).  Therefore, your client’s contractual promise to reimburse the health insurer from the tort recovery creates an equitable lien on the recovery to the extent of the insurer’s valid subrogation claim.  See Sereboff v. Mid Atlantic Medical Services, Inc., 547 U.S. 356, 363-68 (2006).

If you dishonor the lien, then you will be personally liable to the plan.  See Hoffman v. Liberty Mutual Insurance Co., 232 Md. 51, 56-57 (1963).You would also be in ethical trouble.  See Maryland Rule of Professional Conduct 1.15(d) & (e).Therefore, tell the client that absolutely cannot remit the funds to her in disregard of the Rawlings’s and the plan’s claims.

Besides, as others have stated, if the client breaches the subrogation contract, the health insurer may dispense with suing the client or you, and may instead simply electronically retract all of the payments that it made to the health care providers in the case, or put your client’s future health benefits in “retention” until it recoups the amount that it claims to be owed.  But neither one of those things will happen, because you will not remit the funds to the client.

A client should always be advised, if possible, what he or she will “net” from an offered settlement.

There has been some language in recent Court of Appeals decisions which said that an attorney must pay a client’s “debts” out of a tort recovery, including amounts owed to health care providers.  See, e.g., Attorney Grievance Commission v. Mungin, 439 Md. 290, 308 (2014); Attorney Grievance Commission v. Roberts, 394 Md. 137, 163-64 (2006).  But the language in those cases must be read in context.In those cases, the attorney was supposed to pay the health care providers out of the recovery because the client had instructed or authorized the lawyer to do so.  The attorney then did not do so or unduly delayed in doing so.  Obviously, that behavior is a problem, particularly if the lawyer converts for his own use the money that the client had instructed him to pay to the health care providers.

But that is a different situation from one in which there is no lien or letter of protection for a particular health care provider, and the client instructs the lawyer not to pay the health care provider.

Medicare must always be paid back for any medical expenses it paid that are related to the accident

 

What type of rental car and how long can I keep It?

What type of rental car am I entitled to and for how long am I entitled to a rental car?

The simple answer is under Maryland law you are entitled to a replacement vehicle ( rental car) while your vehicle is being repaired comparable to the vehicle you had at the time of the accident. It is not acceptable to provide a compact car when you were driving an SUV at the time of the accident. When your car is involved in a Maryland automobile accident and is not drivable you are entitled to be reimbursed for the cost of a rental car immediately and your right to a rental car shall continue until your car has been repaired. Most insurance companies in the alternative provide a rental car because they are able to provide them at a reduced rate. The length of time for the rental car depends upon the reasonable period of time it will require to fix the vehicle. If it takes time to order parts than that time is included in the period for using a rental car. If your car is drivable then the parts should be ordered in advance by the shop and once the parts have been obtained then the car should be left with the shop for repairs. Issues often arise when the shop provides faulty work or the delay in repairs is due to the fault of the shop. When the delay in repairs is due solely because of the fault of the shop as when the vehicle takes twice as long to repair because the shop has poorly trained workers or too much work and not enough help, than the insurance company may no longer be responsible for the delay and at that point a remedy should be expected from the shop.

It has long been the assumption, as reflected in the applicable Maryland Civil Pattern Jury Instruction, that “[t]he measure of damages for loss of use is the reasonable rental value of comparable property.”  Maryland Civil Pattern Jury Instruction 10:21(d) (emphasis supplied).  As a New York intermediate appellate court said nearly a hundred years ago, “The practice has obtained in these damaged vehicle cases of allowing the cost of the actual hire of another vehicle similar to that damaged; and this custom has prevailed, we think, largely because the measure of damage is rarely objected to.”  Naughton Mulgrew Motor Car Co. v. Westchester Fish Co., 173 N.Y.S. 437, 438 (N.Y. App. Div. 1918).

That practice is supported by Maryland’s case law.  Specifically, the requirement that the rental vehicle be “comparable” stems from the general rule that “the measure of damages for injury to personal property, which has not been totally destroyed, ‘is the cost of repairing the property together with the value of the use of the property during the time it would take to repair it.’”  Hopper, McGraw Co., Inc. v. Kelly, 145 Md. 161, 167 (1924) (parentheses omitted), quoting Washington, Baltimore and Annapolis Railway Co. v. William A. Fingles, Inc., 135 Md. 574, 579-80 (1920), in turn quoting 17 Corpus Juris, page 877.

In Weishaar v. Canestrale, 241 Md. 676 (1966), the plaintiff, immediately after the accident, ordered a replacement for his truck that had been “destroyed” in the accident.  Id. at 684.  “Because the body had to be specially fabricated for his use, delivery was not accomplished until five weeks later, during which time, in order to continue his business, he was obliged to hire a truck.”  Id.  During those five weeks, the plaintiff paid $875 to rent a truck.  The defendant contended that the plaintiff was not entitled to recover those expenses.  The Court of Appeals disagreed.  See id. at 684-86.  Quoting a comment to § 927 of the First Restatement of Torts (1939), the Court said that “’damages can properly include an amount for expenses in procuring a necessary substitute or for the value of the use of a substitute until a replacement of the subject matter can be made.’”  Id., 241 Md. at 684.

One of the cases which the Court cited in its discussion was the Fourth Circuit’s decision in Chesapeake & Ohio Railway Co. v. Elk Refining Co., 186 F.2d 30 (4th Cir. 1950), in which the court said: “We think that the expense to which the refining company was put in hiring another tractor-trailer unit to take the place of that which had been damaged until the tractor could be repaired and another trailer obtained should have been allowed as an element of damages.”  Id. at 32.

Courts in other jurisdictions have held that the loss of the use of a motor vehicle is measured by the reasonable rental cost of a comparable motor vehicle.  See Lenz Construction Co. v. Cameron, 674 P.2d 1101, 1103 (Mont. 1984) (the “general measure of loss-of-use damages” is “the reasonable rental value of a comparable machine for the period of time necessary for replacement, regardless of whether another machine is actually rented”); Husebo v. Ambrosia, Ltd., 283 N.W.2d 45, 47 (Neb. 1979) (“the correct measure” of “the reasonable value of the use of the motor vehicle injured while it is being repaired with ordinary diligence” is “that amount which does not exceed either the fair rental value of a vehicle of like or similar nature and performance for a reasonable length of time, or the amount actually paid, whichever is the least”); Roberts v. Pilot Freight Carriers, Inc., 160 S.E.2d 712, 718 (N.C. 1968) (“Ordinarily the measure of damages for loss of use of a business vehicle is not the profits which the owner would have earned from its use during the time he was deprived of it; it is the cost of renting a similar vehicle during a reasonable period for repairs.”); National Dairy Products Corp. v. Jumper, 130 So.2d 922, 923 (Miss. 1961) (“In short, loss of use of a repairable vehicle is measured by the reasonable rental value of a similar unit.  There is one exception, where the owner can show that no substantially similar unit was available for rent.  The burden of proof to establish the exception is upon the person seeking damages. . . .  This measure of damages for loss of use has the virtue of certainty and fairness, in that there can ordinarily be determined specifically the value of the loss of use, by ascertaining the rental value of a similar vehicle.”); Lamb v. R.L. Mathis Certified Dairy Co., 359 S.E.2d 214, 216 (Ga. Ct. App. 1987) (“plaintiff would be entitled to reasonable rental value of a comparable car for a reasonable length of time to have the body repairs completed”); Conley v. Kansas City Railways Co., 259 S.W. 153, 154 (Mo. Ct. App. 1921) (“The measure of damages for the use of the car in plaintiff’s livery business was the cost of hiring such a machine in the market for the period during which the plaintiff was deprived of the use of his own machine.  Plaintiff was not entitled to recover the profits derived from the use of his car in the absence of proof that a similar machine could not be hired in the market at the time.”)

He is not entitled to recover the rental cost of a more valuable vehicle.  The Court of Appeals said in Washington, Baltimore and Annapolis Railway Co. v. William A. Fingles, Inc.supra, 135 Md. at 581:

If there had been evidence that the automobile hired by the plaintiff was more valuable than the car that was damaged,

or that the rental value of the hired car was greater than the rental value of the damaged car, or that the rate paid by

plaintiff for the use of the hired car was unreasonable or excessive, there would have been more ground for complaint.(Emphasis in original.)  In the same sense, the plaintiff here is rightfully entitled to complain if the vehicle with which he is provided is less valuable than the SUV that was damaged, or if the rental value of the hired car is less than the rental value of the SUV.In fact, the plaintiff is not required actually to rent a vehicle in order to recover the reasonable rental cost.  See King v. American Family Mutual Insurance Co., 501 N.W.2d 24 (Wis. 1993); Cress v. Scott, 868 P.2d 648 (N.M. 1994); Holmes v. Raffo, 374 P.2d 536, 540-42 (Wash. 1962); Camaraza v. Bellavia Buick Corp., 523 A.2d 669, 671-72 (N.J. Super. Ct. App. Div. 1987); Warren v. Heartland Automotive Services, Inc., 144 P.3d 73, 78-79 (Kan. Ct. App. 2006); Meakin v. Dreier, 209 So.2d 252 (Fla. Dist. Ct. App. 1968); NaughtonMulgrew Motor Car Co. v. Westchester Fish Co.supra, 173 N.Y.S. at 438-40.  As the Supreme Court of Washington said in this regard:

 

If we were to hold that a plaintiff who has lost the use of his pleasure automobile, which itself does not have a market

rental value or pecuniary value to a business, but which does have a usable value to the plaintiff, cannot be compensated

because he has not hired a substitute automobile, we would be placing upon recovery a condition of financial ability to hire another automobile to take the place of the injured automobile.The law cannot condone such a condition.  He would be denied compensation for his inconvenience resulting from the defendant’s wrongful act.Holmes v. Raffosupra, 374 P.2d at 542.

241 Md. 676 (1966)

217 A.2d 525

WEISHAAR ET AL.
v.
CANESTRALE ET AL. (Three Appeals in One Record)

[No. 171, September Term, 1965.]

Court of Appeals of Maryland.

Decided March 11, 1966.

Immediately after the accident Canestrale ordered a replacement for the truck which had been destroyed. Because the body had to be specially fabricated for his use, delivery was not accomplished until five weeks later, during which time, in order to continue his business, he was obliged to hire a truck. He was permitted, over objection, to show that this cost him, at $175 per week (conceded to be reasonable) a total of $875, which amount the jury included in its verdict under the instructions of the court. Weishaar argues this is reversible error on the part of the trial judge.

Barnes v. United Railways Co., 140 Md. 14, 116 Atl. 855 (1922) is cited in support of the proposition that when a motor vehicle is totally destroyed, and there is a recovery for its full value, there can be no recovery for loss of use. There was dictum to that effect in Barnes and, generally speaking, it is a correct statement of the law but there is a well recognized exception, which, while we seem not to have had occasion to consider it in the past, is, nevertheless, applicable in the case at bar. In the comment to § 927 of the Restatement, Torts (1939) it is said that “damages can properly include an amount for expenses in procuring a necessary substitute or for the value of the use of a substitute until a replacement of the subject matter can be made * * *.”

Guido, et al. v. Hudson Transit Lines, 178 F.2d 740 (3rd Cir.1950), in the words of Judge Goodrich, who wrote the court’s opinion, “is an almost perfect moot court case,” and, we might add, singularly apposite to the instant case. The plaintiff there, because of post-war shortages, was not able to buy a new truck for two years. There was no attack upon the reasonableness of plaintiff’s conduct nor the accuracy of his testimony. The same is true in respect of Canestrale. We think the language of Judge Goodrich, which we quote below, states the proper rule to be applied in the case at bar:

“The rule is well established that the measure of damages for the conversion or destruction of a chattel is the market value of the chattel at the time and place of the conversion or destruction. While this is sometimes 685*685 stated as though it were a rule applicable to vehicles it is a general rule applicable to all kinds of chattels. The justification for it is that this provides a convenient rule of thumb and, in case the article is readily replaceable on the open market, compensates the owner for his loss.

“The difficulty comes when this convenient rule of thumb is sought to be applied to every case regardless of the circumstances. This the defendant would have us do here and cites authorities which have taken this ironclad view of the matter. [Citing cases.] The fear of allowing `speculative’ damages has scared some courts into applying what Mr. Justice Christiancy years ago called `the certainty of injustice.’ [Allison v. Chandler, 1863, 11 Mich. 542, 555.]

“The general principle which should govern the matter is quite clear. Damages are supposed to compensate the injured person for the wrong which has been done him. [Restatement, Torts, § 910.] If his loss is greater than the market value of the chattel at the time of its destruction, an owner should, on principle, be allowed additional items which will adequately compensate him unless some of those claimed items are so speculative as to create danger of injustice to the defendant.

“Here we have the perfect case for the allowance of the additional element of damages. As pointed out above, the plaintiffs’ case removed the possibility of speculation by careful proof which showed not only the possibility of profitable use but an actual contract for that use. This case, therefore, fits perfectly into the statement of the measure of damages set out in Section 927 of the Restatement of Torts.” Id at 742.

What if I was not wearing a seat belt at the time of my accident? Can I still recover damages?

In some states, not buckling up can negate or reduce any potential compensation for damages, on the basis that people suffer more severe and expensive injuries when they’re not wearing seat belts. In other states, this is not the rule. In Maryland the non-use of a seat belt is NOT admissible evidence in injury cases.However Maryland does require the use of a seat belt for any one in the vehicle who is age 16 or above.See the below Maryland seat Belt law.

Md. TRANSPORTATION Code Ann. § 22-412.3  (2017)

§ 22-412.3. Mandatory seat belt use


   (a) Definitions. —

   (1) In this section the following words have the meanings indicated.

   (2) (i) “Motor vehicle” means a vehicle that is:

         1. Registered or capable of being registered in this State as a Class A (passenger), Class E (truck), Class F (tractor), Class M (multipurpose), or Class P (passenger bus) vehicle; and

         2. Required to be equipped with seat belts under federal motor vehicle safety standards contained in the Code of Federal Regulations.

      (ii) “Motor vehicle” does not include a Class L (historic) vehicle.

   (3) “Outboard front seat” means a front seat position that is adjacent to a door of a motor vehicle.

   (4) (i) “Seat belt” means a restraining device described under § 22-412 of this subtitle.

      (ii) “Seat belt” includes a combination seat belt-shoulder harness.

(b) Seat belts required. — A person may not operate a motor vehicle unless the person and each occupant under 16 years old are restrained by a seat belt or a child safety seat as provided in § 22-412.2 of this subtitle.

(c) Passengers. —

   (1) The provisions of this subsection apply to a person who is at least 16 years old.

   (2) Unless a person is restrained by a seat belt, the person may not be a passenger in an outboard front seat of a motor vehicle.

   (3) (i) Unless a person is restrained by a seat belt, the person may not be a passenger in a rear seat of a motor vehicle.

      (ii) A police officer may enforce this paragraph only as a secondary action when the police officer detains a driver of a motor vehicle for a suspected violation of another provision of the Code.

(d) Physically disabled persons. — If a physician licensed to practice medicine in this State determines and certifies in writing that use of a seat belt by a person would prevent appropriate restraint due to a person’s physical disability or other medical reason, the provisions of this section do not apply to the person.

(e) Certification of disability. — A certification under subsection (d) of this section shall state:

   (1) The nature of the physical disability; and

   (2) The reason that restraint by a seat belt is inappropriate.

(f) U.S. Postal Service and contract carriers. — The provisions of this section do not apply to U.S. Postal Service and contract carriers while delivering mail to local box routes.

(g) Violations not moving violation. — A violation of this section is not considered a moving violation for purposes of § 16-402 of this article.

(h) Failure to use seat belt. —

   (1) Failure of an individual to use a seat belt in violation of this section may not:

      (i) Be considered evidence of negligence;

      (ii) Be considered evidence of contributory negligence;

      (iii) Limit liability of a party or an insurer; or

      (iv) Diminish recovery for damages arising out of the ownership, maintenance, or operation of a motor vehicle.

   (2) Subject to the provisions of paragraph (3) of this subsection, a party, witness, or counsel may not make reference to a seat belt during a trial of a civil action that involves property damage, personal injury, or death if the damage, injury, or death is not related to the design, manufacture, installation, supplying, or repair of a seat belt.

   (3) (i) Nothing contained in this subsection may be construed to prohibit the right of a person to institute a civil action for damages against a dealer, manufacturer, distributor, factory branch, or other appropriate entity arising out of an incident that involves a defectively installed or defectively operating seat belt.

      (ii) In a civil action in which 2 or more parties are named as joint tort-feasors, interpleaded as defendants, or impleaded as defendants, and 1 of the joint tort-feasors or defendants is not involved in the design, manufacture, installation, supplying, or repair of a seat belt, a court shall order separate trials to accomplish the ends of justice on a motion of any party.

What determines who is responsible in an automobile accident?

Figuring out who is at fault in a traffic accident is a matter of deciding who was careless. And for vehicle accidents, there is a set of official written rules telling people how they are supposed to drive and providing guidelines by which liability may be measured. These rules of the road are the traffic laws everyone must learn to pass the driver’s license test. Complete rules are contained in each state’s Vehicle Code, and they apply not only to automobiles but also to motorcycles, bicycles and pedestrians.

Figuring out who is at fault in a traffic accident is a matter of deciding who was careless. And for vehicle accidents, there is a set of official written rules telling people how they are supposed to drive and providing guidelines by which liability may be measured. These rules of the road are the traffic laws everyone must learn to pass the driver’s license test. Complete rules are contained in each state’s Vehicle Code, and they apply not only to automobiles but also to motorcycles, bicycles and pedestrians.

Car accident claims involving Uber and Lyft.

The rules of the road are complex. Clients often tell me well he hit me so he is at fault. Who hit whom is usually irrelevant. Clients should never try to handle the case without a lawyer.

While there are thousands of traffic laws that deal with drivers’ obligations to each other, there are some basic traffic rules which repeatedly appear relevant in determining liability and which a good Baltimore Injury lawyer will know.

  1. Negligence is doing something that a person using reasonable care would not do, or not doing something that a person using reasonable care would do. Reasonable care means that caution, attention or skill a reasonable person would use under similar circumstances.
  2. A reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person. Therefore, if the foreseeable danger increases, a reasonable person acts more carefully.
  3. The violation of a statute, which is a cause of plaintiff’s injuries or damages, is evidence of negligence.
  4. Striking a stopped car or a moving car in the rear
  5. If you change lanes and hit another car in the lane you are changing into
  6. If you run a red light and collide with a vehicle that has a green light
  7. If you run a stop sign and collide with a vehicle that did not have a stop sign
  8. If you fail to yield the right of way at a yield sign and collide with a vehicle that did not have a yield sign
  9. If you make a left turn, in front of traffic going in the opposite direction
  10. If you pull from a park position and hit another vehicle on the boulevard
  11. If you pull out of a parking lot or side street and collide with a car on the boulevard
  12. If you stop at a red light and make a right turn on red or go straight after you stop while the light is still red and collide with a vehicle that has a green light
  13. If you stop at the stop sign and then proceed and collide with a vehicle that did not have a stop sign
  14. Crossing the center line
  15. roundabout  road law
  16. speeding

Should I release my medical records to the driver’s insurance adjuster?

Insurance companies will usually ask the injured party to sign a release of medical records. Signing a medical release authorizing an insurance company to obtain your medical records is almost always a bad idea. As part of your injury claim for personal injury protection benefits under your own insurance policy, an uninsured motorist claim under your own insurance policy or a liability claim against the at fault drivers insurance company, it will be necessary to provide the insurance company all medical records and medical bills that are related to your case.If you have an attorney who will be representing you in this matter, than the attorney will have you sign a medical authorization allowing your attorney to obtain those records so that there is no reason why the insurance company would also need a release of records.

If you do not have an attorney for your injury claim, you could allow the insurance company to obtain those records but that is not a good idea.Once you sign a release they may be able to receive any medical record about you whether related to the accident or not.Why would you want an insurance representative who you do not know, having authorization to look at all of your medical history. The better practice would be that if you do not have a lawyer, then again, you should obtain those records and bills and forward them to the insurance company.

Once you or your lawyer receives those records, they should be read to make sure they are related to the accident and do not contain information unrelated to the accident and that you do not want the entire world to know.

In addition medical records are notorious for having false information in them. It is important that the records be closely scrutinized before sending to the insurance company.

If you give a blank authorization to the insurance company then they can obtain all of your medical history whether that is related to the accident or not.

What happens if the cause of the automobile accident is not clear?

It is sometimes difficult to say that one particular act caused an accident. If you can show that the other driver made several minor driving errors or committed several minor traffic violations, then you can argue that the combination of those actions caused the accident. Almost half the states have some form of no-fault auto insurance, also called personal injury protection.In those states , the claim is paid no matter who is at fault, but the recoveries may be limited to medical expenses and lost wages.Maryland is not a no fault state. Maryland requires proof of fault in order to recover.

Often there is a dispute about how the accident happened. Both sides tell the story in such a way that if their story were true, then they would not be at fault. Most of the time when there are conflicting stories, it is not likely that both parties are correct in their assessment about what happened. While some people do lie in order to avoid being responsible for the other person’s damage, more often than not the parties just remember the facts differently. It is not unusual to have cases were each side differs in what happened and each side has independent witnesses who also differ as to what happened in a case. For these situations, that is why they have courts to try and resolve the situation. At trial a good Baltimore Injury lawyer, can through direct and cross examination, explore the:

(1) the witness’s behavior on the stand and way of testifying;

(2) the witness’s opportunity to see or hear the things about which testimony was given;

(3) the accuracy of the witness’s memory;

(4) did the witness have a motive not to tell the truth?;

(5) does the witness have an interest in the outcome of the case?;

(6)  was the witness’s testimony consistent?;

(7) was the witness’s testimony supported or contradicted by other evidence?; and

(8) whether and the extent to which the witness’s testimony in the court differed from the statements made by the witness on any previous occasion.

An attorney is essential in order to win your case.

DO I HAVE TO ACCEPT THE INSURANCE OFFER TO TOTAL LOSS MY VEHICLE

Normally, if a car has significant damage, a car owner is happy when the insurance company declares their vehicle a total loss. After a significant accident, many owners no longer have an interest in fixing their vehicles and are afraid to drive the vehicle after it has had so many repairs.  Many owners want to force the insurance company to total loss their vehicle, so they can start over with a different vehicle. A vehicle is a total loss under Maryland law when “Has been damaged by collision, fire, flood, accident, trespass, or other occurrence to the extent that the cost to repair the vehicle for legal operation on a highway exceeds 75% of the fair market value of the vehicle prior to sustaining the damage. As an example, if your car is worth $10,000.00 prior to the accident and the appraiser says it will cost $8000.00 to fix the car, then the car is a total loss and the insurance company must pay you the fair market value of the car $10,000.00 even though the damage could be fixed for $8,000.00.

Other vehicle owners may want their vehicle fixed because they do cannot afford to purchase another vehicle or they owe more money on the vehicle than what the fair market value of the car is and therefore buying another car is not an option. In those circumstances it may be possible to get the insurance company to fix the car rather than declare it a total loss. It may seem like common sense that an insurance company would rather fix the car for the estimate that is less than the total loss value since they would save money, however when the damage to the car exceeds 75% of the fair market value of the vehicle prior to sustaining the damage, then Maryland law requires them to pay the total loss value of the car unless you can convince the Insurance Company that your situation fits within one of the little known exceptions to the legal requirement. When the vehicle damage estimate includes cosmetic damage as defined by the law, the cosmetic damage must be excluded from the cost of repairs used to determine whether a vehicle is a total loss. Other costs that can be excluded to determine whether a vehicle is a total loss include taxes on the parts and labor.

Cosmetic damage repairs are repairs done solely for the sake of appearance, decorative or ornamental, superficial, non- substantive and if left unrepaired, would not impact the functionality, nor render the vehicle unsafe or unable to operate on public roadways.

Cosmetic damage shall not include any repair required to enable a vehicle to pass a safety inspection under Subtitle 14 of this Title.

  1. Cosmetic damage repairs are those required solely for:
  • Vehicle refinishing labor and materials;
  • External trim molding and fascia;
  • Molded, non-metal bumper covers;
  • Grilles;
  • Entertainment systems;
  • Audiovisual, telephone, and mapping equipment;
  • Emblems, stripes and decals;
    (7) Hubcaps and wheel covers;
  • Interior carpet;
  • Upholstery, excluding driver seat; and
  • Interior door trim panels.
  1. Except as set forth in 13(1) of this regulation, the cost for cosmetic damage repairs shall only include the cost of parts and materials and may not include the cost of labor.
  2. The cost for cosmetic damage repair may not be included in the cost to repair the vehicle when determining the calculation for a salvage vehicle, as set forth in Transportation Article, §13-506(c)(4), Annotated Code of Maryland.
  3. For purposes of determining the calculation for a salvage vehicle, any tax on the parts or labor may not be included.

Comar regulation Title 11 DEPARTMENT OF TRANSPORTATION

  1. Subtitle 15 MOTOR VEHICLE ADMINISTRATION—VEHICLE REGISTRATION 15, 34 Salvage Vehicle Calculation- provides that an Insurance Company must use the following method: For purposes of determining the calculation for a salvage vehicle, fair market value is the valuation shown in a national publication of used car values or from a computerized database that produces statistically valid fair market values and does not include costs for titling, registration, and applicable taxes.

 MD Code, Transportation, § 11-152

Salvage vehicles-Salvage defined

  • “Salvage” means any vehicle that:
  1. Has been damaged by collision, fire, flood, accident, trespass, or other occurrence to the extent that the cost to repair the vehicle for legal operation on a highway exceeds 75% of the fair market value of the vehicle prior to sustaining the damage, as determined under § 13-506(c)(4)’of this article;
  2. Has been acquired by an insurance company as a result of a claim settlement; or
  3. Has been acquired by an automotive dismantler and recycler:
  4. As an abandoned vehicle, as defined under § 25-201 of this article; or
  5. For rebuilding or for use as parts only.
  6. Owner retaining possession of vehicle

(b) For purposes of this section, a vehicle has not been acquired by an insurance company if an owner retains possession of the vehicle upon settlement of a claim concerning the vehicle by the insurance company.

Title 11 DEPARTMENT OF TRANSPORTATION

Subtitle 15 MOTOR VEHICLE ADMINISTRATION—VEHICLE REGISTRATION

11.15, 34 Salvage Vehicle Calculation

Authority: Transportation Article, §§12-104(b) and 13-506, Annotated Code of Maryland

.01 Scope.

This chapter is to establish the requirements and guidelines for determining what type of repairs can be deducted from the

salvage vehicle calculation for the purpose of a title brand, as set forth in Transportation Article, §13-506, Annotated Code of Maryland.

.02 Cosmetic Damage.

  1. Cosmetic damage repairs are repairs done solely for the sake of appearance, decorative or ornamental, superficial, non-

substantive and if left unrepaired, would not impact the functionality, nor render the vehicle unsafe or unable to operate on public roadways.

Cosmetic damage shall not include any repair required to enable a vehicle to pass a safety inspection under Subtitle 14 of this Title.

  1. Cosmetic damage repairs are those required solely for:
  • Vehicle refinishing labor and materials;
  • External trim molding and fascia;
  • Molded, non-metal bumper covers;
  • Grilles;
  • Entertainment systems;
  • Audiovisual, telephone, and mapping equipment;
  • Emblems, stripes and decals;
    (7) Hubcaps and wheel covers;
  • Interior carpet;
  • Upholstery, excluding driver seat; and
  • Interior door trim panels.
  1. Except as set forth in 13(1) of this regulation, the cost for cosmetic damage repairs shall only include the cost of parts and materials and may not include the cost of labor.
  2. The cost for cosmetic damage repair may not be included in the cost to repair the vehicle when determining the calculation for a salvage vehicle, as set forth in Transportation Article, §13-506(c)(4), Annotated Code of Maryland.
  3. For purposes of determining the calculation for a salvage vehicle, any tax on the parts or labor may not be included.
  4. For purposes of determining the calculation for a salvage vehicle, fair market value is the valuation shown in a national publication of used car values or from a computerized database that produces statistically valid fair market values and does not include costs for titling, registration, and applicable taxes.

Title 11 DEPARTMENT OF TRANSPORTATION

Subtitle 15 MOTOR VEHICLE ADMINISTRATION VEHICLE REGISTRATION

11.15. 34 Salvage Vehicle Calculation

Authority: Transportation Article, §§12-104(b) and 13-506, Annotated Code of Maryland

.01 Scope.

This chapter is to establish the requirements and guidelines for determining what type of

repairs can be deducted from the salvage vehicle calculation for the purpose of a title brand, as set forth in Transportation Article, §13-506, Annotated Code of Maryland.

.02 Cosmetic Damage.

  1. Cosmetic damage repairs are repairs done solely for the sake of appearance, decorative or ornamental, superficial, non-substantive and if left unrepaired, would not impact the functionality, nor render the vehicle unsafe or unable to operate on public roadways. Cosmetic damage shall not include any repair required to enable a vehicle to pass a safety inspection under Subtitle 14 of this Title.
  2. Cosmetic damage repairs are those required solely for:
  • Vehicle refinishing labor and materials;
  • External trim molding and fascia;
  • Molded, non-metal bumper covers;
  • Grilles;
  • Entertainment systems;
  • Audiovisual, telephone, and mapping equipment;
  • Emblems, stripes and detail
  • Hubcaps and wheel covers;

(9)Interior carpet;

  • Upholstery, excluding driver seat; and
  • Interior door trim panels.
  1. Except as set forth in B(1) of this regulation, the cost for cosmetic damage repairs shall only include the cost of parts and materials and may not include the cost of labor.
  2. The cost for cosmetic damage repair may not be included in the cost to repair the vehicle when determining the calculation for a salvage vehicle, as set forth in Transportation Article, §13-506(c)(4), Annotated Code of Maryland.
  3. For purposes of determining the calculation for a salvage vehicle, any tax on the parts or labor may not be included.
  4. For purposes of determining the calculation for a salvage vehicle, fair market value is the valuation shown in a national publication of used car values or from a computerized database that produces statistically valid fair market values and does not include costs for titling, registration, and applicable taxes.

If I file a personal injury claim, do I have to go to court?

If another driver’s insurance company agrees to pay what your attorney believes your case is worth, and you wish to settle for that amount, then your case will not go to court. Most cases are settled during negotiations that take place shortly after you have completed your treatment. In most cases, by the time you have completed your treatment, the insurance company has accepted liability and paid for the damages to your car. While you are treating with the doctor, your lawyer should be gathering all of your medical bills and reports as well as any claim you are making for lost wages. Once your doctor releases you from treatment, then your attorney will gather the final bills and reports and then send a demand letter to the insurance company summarizing your case along with a demanded amount. Approximately 30 days later , negotiations will take place. Once a final settlement offer is made, the it is up to the client as to whether the settlement offer is acceptable. If the offer is acceptable, then the case is resolved and court will not be necessary. If the amount is unacceptable to the client, then suit will have to be filed and yes you may have to go to court. Hiring a law firm with experience in handling personal injury cases is critical.

How long does does it take to settle an accident case?

Even when suit is filed in court, you still may not have to actually appear in court. Some insurance companies will not make their best offer until after suit is filed. Some wait until the court date or settlement conference to make their best offer. Other insurance companies make their best offer up front.If you have an experienced lawyer, he should know which insurance company uses which technique.

Very few cases actually go to trial.At some point, there is usually a meeting of the minds by all parties.Clients often get impatient.Insurance companies re-evaluate claims.New adjusters get assigned to the case who have more authority or see things differently.New facts are discovered while waiting for trial that can effect the value of the case.

However, if the parties ultimately can not agree on a figure, then the only way to resolve the case is by a trial. The trial will involve several days of testimony. Here is a set of typical questions asked at an auto accident trial. At trial, then the judge or jury decides the value of the case and then all of the parties will be bound by their decision, whether they are happy with the amount or not.

see attached link for what an attorney can do for you before suit is filed

If I don’t feel injured after an automobile accident, should I see a doctor?

Client often call and state, I was in an accident but I had no injuries at the scene. Often when asked by the other driver, witnesses at the scene of the accident or by the police, you may tell all that you are fine and not injured and refuse any medical treatment.Often because of all the confusion immediately after an accident, you may not realize that you are injured or feel it is minor enough not worth even mentioning to anyone. Other people are very stoic and do not like to complain. However later that day or the next day, the condition worsens and you now begin to become concerned. Less frequently the pain develops after a couple of days after the accident and you have done nothing else to cause the pain

Almost any car accident is a traumatic event. Often, when people are in a car accident that seems minor, they do not notice any injury symptoms right away. Car accidents are exciting.Not “exciting” in the fun sense, more from a physiological perspective.Sometimes athletes get injured during a game, and they continue to play without noticing the injury until the game is over. That is because their bodies are generating adrenaline and endorphins. These two chemicals operate to super-charge our bodies and even block pain.

Most car accidents will create a similarly heightened level of excitement. Your body will generate adrenaline and endorphins, which means you feel increased energy and (possibly) a lack of pain. Just because you feel fine immediately following a car accident, that doesn’t necessarily mean that you are fine. Once the release of those chemicals subsides, the pain from any car accident could start to set in.

Both you and your passengers should consider seeing a doctor after an accident. The doctor may recognize injuries, sometimes serious, that are not apparent to you. The charges for a doctor visit and medical treatment may be covered by your insurance. It is not recommended that you settle claims from an accident until a doctor has seen you and advised you about the extent of your injuries.

Soft tissue injuries are commonly categorized depending on the time frame since injury and the healing processes that are occurring at that time.

Acute – Protection Phase

A soft tissue injury is termed as acute from the initial time of injury and while the pain, bleeding and swelling is at its worst. Your body’s aim at this point is to protect your injury from further damage. The usual time frame for your acute symptoms to settle is two to four days post-injury, but this can vary depending on how you treat your injury.

Acute Soft Tissue Injury treatment

Sub-Acute – Repair Phase

A soft tissue injury is termed as sub-acute when the initial acute phase makes a transition to repairing the injured tissues. This phase commonly lasts up to six weeks post-injury when your body is bust laying down new soft tissue and reducing the need to protect your injury as the new scar tissue etc begins to mature and strengthen.

Sub-Acute Soft Tissue Injury treatment

Late Stage – Remodeling Phase

Your body does not magically just stop tissue healing at six week post-injury. Healing is a continuum. At six weeks post-soft tissue injury your healing tissue is reasonably mature but as you stretch, strength and stress your new scar tissue it often finds that it is not strong enough to cope with your increasing physical demand.

When your body detects that a repaired structure is still weaker that necessary, it will automatically stimulate additional new tissue to help strengthen and support the healing tissue until it meets the demands of your normal exercise or physical function.

The period between six weeks and three months post-injury is commonly referred to as the remodelling phase.

Chronic Phase – Ongoing Repair and Remodelling

Beyond three months is referred to as the chronic phase and probably refers mainly to pain that lasts more than 3 months. However, your soft tissue is constantly being injured by your daily activities and workout, only to magically repair and remodel the tissue to meet your specific exercise demands.

How Does Treatment Vary Depending on the Phase?

Your treatment will vary depending upon the needs and demands of your injury. Only a  Doctor and therapist who specialize in treatments of injuries caused in accidents are experts in the diagnosis and treatment of soft tissue injuries and the best techniques for your specific injury and phase of healing.

The law office of Marc J. Atas and Associates can refer you to a doctor who specializes in any type of injury caused by a personal injury claim and get you an appointment the same day!

What if I believe the accident was partly my fault?

You are probably not in the best position to assess how or why the accident happened. Defective equipment in your vehicle, a malfunctioning traffic signal, or another driver’s intoxication are among many possible causes of an accident, which your attorney can investigate and evaluate. Accepting blame and apologizing to another driver may be used as evidence against you at trial. At the accident scene, show your sympathy and try and be cooperative, but you do not have to admit fault.You should immediately contact an attorney to go over the facts in your case.

However if after speaking to your attorney,any of the below circumstances are true you may not be able to file a claim unless you can prove last clear chance as outlined below.

 If the accident was partially or totally your fault, then you cannot win in a motor vehicle case unless you can prove last clear chance.

A plaintiff cannot recover if the plaintiff’s negligence is a cause of the injury.

Contributory negligence

The defendant has the burden of proving by a preponderance of the evidence that the plaintiff’s negligence was a cause of the plaintiff’s injury.If the other driver can prove that any action you took violated a traffic law and was a cause even if not the sole cause of the accident then you cannot prevail in the state of Maryland. Maryland is one of three states that accepts contributory negligence as an absolute defense in an auto accident case. So if the other driver is theoretically 99% at fault and you are only one percent at fault in the state of Maryland you lose.Bottom line in order to prevail in a car accident case you must be negligence free. See attached link for article on whether speeding can be contributory negligence

Assumption of Risk

The other defense in a car accident case is assumption of risk.A plaintiff cannot recover if the plaintiff has assumed the risk of the injury. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger or reasonably should have known and understood the risk of an existing danger, and voluntarily chooses to encounter the risk. An example of this is when you get in a car as a passenger where you know the driver of the car is intoxicated. Once you allow that person to drive, you know they are impaired, that there is a greater risk when you travel in a car with a driver who is impaired and if that person later has an accident you have agreed to assume that risk and therefore you cannot sue them.

Last Clear Chance

The only rebuttal to the defense of contributory negligence is Last Clear Chance.

Last Clear Chance is shown when a plaintiff who was contributory negligent may nevertheless recover if the plaintiff was in a dangerous situation and thereafter the defendant had a fresh opportunity of which defendant was aware to avoid injury to the plaintiff and failed to do so.an example of this would be if defendant was making a left hand turn in front of plaintiff who is speeding and going straight. Both cars have a green light. Both cars are violating the rules of the road. However after the car that is turning left realizes the car gong straight is speeding, he then has a fresh opportunity to stop turning but decides to continue turning left and the vehicles collide.

Can I still win my case if my memory of the accident now conflicts with things I might have said at the time of the accident?

It’s very common for people to say things at the time of an incident that they later realize were inaccurate. Sometimes, a witness may misstate what you said about how the incident took place. You might have a hard time explaining how it is that you now remember things differently than you did at the time of the incident, but if you consult with an attorney, he or she will have experience handling such a situation, and can help find support for your side of the story.

Often there is a dispute about how the accident happened. Both sides tell the story in such a way that if their story were true, then they would not be at fault. Most of the time when there are conflicting stories, it is not likely that both parties are correct in their assessment about what happened. While some people do lie in order to avoid being responsible for the other person’s damage, more often than not the parties just remember the facts differently. It is not unusual to have cases were each side differs in what happened and each side has independent witnesses who also differ as to what happened in a case. For these situations, that is why they have courts to try and resolve the situation. At trial a good Baltimore Injury lawyer, can through direct and cross examination, explore the:

(1) the witness’s behavior on the stand and way of testifying;

(2) the witness’s opportunity to see or hear the things about which testimony was given;

(3) the accuracy of the witness’s memory;

(4) did the witness have a motive not to tell the truth?;

(5) does the witness have an interest in the outcome of the case?;

(6)  was the witness’s testimony consistent?;

(7) was the witness’s testimony supported or contradicted by other evidence?; and

(8) whether and the extent to which the witness’s testimony in the court differed from the statements made by the witness on any previous occasion.

I was in a car accident and the air bags in my car didn’t deploy. Do I have a case against the car manufacturer?

That depends, as there are several factors that dictate whether an air bag will deploy in a collision. 65 to 90 percent of vehicles on the road in the U.S. have some degree of electronic data recorder (EDR). Contents of your EDR should be downloaded and preserved. If the circumstances of your accident were such that the airbags should have deployed, you very well may have a product liability claim against the manufacturer.

According to the U.S. Department of Transportation, an estimated 28 million vehicles in this country may have defective airbags that can explode when they deploy and spray passenger with metal shrapnel, causing severe injury and even death. A massive nationwide recall is now in effect for Takata airbags after years of partial and regional recalls.

Takata Corp. has filed for bankruptcy protection in Tokyo and the U.S., overwhelmed by lawsuits and recall costs related to its production of defective air bag inflators linked to the deaths of at least 16 people. (Yu Nakajima/Kyodo News via AP)

Takata’s inflators can explode with too much force when they fill up an air bag, spewing out shrapnel. Apart from the fatalities, they’re responsible for at least 180 injuries worldwide. So far 100 million inflators have been recalled worldwide, the largest automotive-related recall in U.S. history. That includes 69 million in the U.S., affecting 42 million vehicles.

 

The process could take years. One of Takata’s lawyers, Nobuaki Kobayashi, said it was too early to estimate the total eventual cost of the recalls and would not confirm Japanese media reports that they exceeded 1 trillion yen ($9 billion).

 

Takata and the automakers were slow to address the problem with the inflators despite reports of deaths and injuries. Eventually they were forced to recall tens of millions of vehicles. The scope of the recalls means some car owners face lengthy waits for replacement parts, meanwhile driving cars with air bags that could malfunction in a crash.

The problems stem from use of the explosive chemical ammonium nitrate in the inflators used to deploy air bags in a crash. The chemical can deteriorate when exposed to hot and humid air and burn too fast, blowing apart a metal canister.

Attorneys for those injured by the inflators worry that $125 million won’t be enough to fairly compensate victims, many of whom have serious facial injuries from metal shrapnel.

The Takata bankruptcy should not affect the pending claims against the car manufacturers.

 

What is a PIP waiver?

A PIP waiver occurs when the vehicle you were in at the time of the accident does not have PIP coverage. A PIP waiver can apply even though the vehicle you were in has PIP coverage if you live in a household where anyone in that household that you are related to has a vehicle and has waived PIP coverage, then it is waived for anyone in the household when they are involved in an accident even though that vehicle was not involved in the accident.

For instance, if you are involved in an accident in your friends vehicle that has PIP coverage, but you own a vehicle and you have waived PIP under that particular policy or if you live with your parents and they have waived PIP coverage under their policy, then you would not be able to make a PIP claim under the policy for the vehicle involved in the accident, even though that vehicle had PIP coverage. Anyone else who was in the vehicle at the time of the accident who had not waived PIP coverage anywhere else would be able to make a claim for PIP.

In order for a PIP waiver to be valid, the insurance company must send written notice explaining what PIP is and the cost. A pip waiver must be in writing and on a form approved by the insurance commissioner.When an accident happens and the insurance company can not produce a copy of the signed waiver form, then the insurance company can not prevent you from filing a PIP claim, even if you remember signing one.

The PIP waiver is binding on all named insureds, the listed drivers on the policy, members of the insureds family residing in insureds household and who are sixteen years old or older.

PIP waivers continue even when the policy is renewed.

As a general, PIP waivers should not be signed unless you absolutely cannot afford the coverage. The medical and lost wage coverage provided is helpful if you are involved in an accident and relatively inexpensive.

 

Insurance rates increase or policy canceled making a Collision,PIP or Uninsured motorist claim?

Will insurance company rates increase or policy canceled if I make a Collision,PIP or Uninsured motorist claim?

If your property damage is fixed under the collision portion of your own policy, then your insurance company may raise your rate or may cancel you, unless they are able to get their money back from the person who was at fault in this particular accident.Normally a collision claim is made against you own insurance company in one of two situations. The first situation is when you are clearly at fault. Under those set of facts you have no choice other than to either let your insurance company fix your car or you pay to fix your car with your own money or you do not fix car.If you are involved in an accident with another vehicle that was your fault and the insurance company is going to fix their vehicle, then you might as well file a claim to fix your vehicle also, since the insurance company is already likely to penalize you for the claim of the other driver and the penalty will not likely be higher if you also file a claim.

If you are not a fault, but the other side has not accepted responsibility, or their insured has not called them back and has failed to cooperate, or the police did not give you the other vehicles information at the scene and you have not received the police report yet, you may need your car fixed and can not wait. If you make a claim under the collision section of your policy, but your insurance company is ultimately repaid by the other party for your damages, then your rate will not go up.

The insurance company cannot cancel you or raise your rates if you collect PIP benefits no matter who is at fault.So there is never a good reason not to make a PIP claim in order to get some or all of your medical expenses and lost wages paid

If it turns out that the person that caused the accident was uninsured at the time of the accident, then you may make a claim under the Uninsured motorist portion of your policy. The insurance company can not penalize you for making a claim under the Uninsured motorist portion of your policy.

With regard to cancellation of car insurance policies, the Maryland legislature has set out in the insurance code section 27-501, the standards the insurance company must follow in order to cancel a policy or raise your rate.

 

Md. INSURANCE Code Ann. § 27-501  (2017)

§ 27-501. Discrimination in underwriting


   (a) In general. —

   (1) An insurer or insurance producer may not cancel or refuse to underwrite or renew a particular insurance risk or class of risk for a reason based wholly or partly on race, color, creed, sex, or blindness of an applicant or policyholder or for any arbitrary, capricious, or unfairly discriminatory reason.

   (2) Except as provided in this section, an insurer or insurance producer may not cancel or refuse to underwrite or renew a particular insurance risk or class of risk except by the application of standards that are reasonably related to the insurer’s economic and business purposes.

(b) Special conditions, facts, or situations prohibited. —

   (1) An insurer may not require special conditions, facts, or situations as a condition to its acceptance or renewal of a particular insurance risk or class of risks in an arbitrary, capricious, unfair, or discriminatory manner based wholly or partly on race, creed, color, sex, religion, national origin, place of residency, blindness, or other physical handicap or disability.

   (2) Actuarial justification may be considered with respect to sex.
(d) Automobile liability insurance. —

   (1) With respect to automobile liability insurance, an insurer may not:

      (i) cancel, refuse to renew, or otherwise terminate coverage for an automobile insurance risk because of a claim, traffic violation, or traffic accident that occurred more than 3 years before the effective date of the policy or renewal; or

      (ii) refuse to underwrite an automobile insurance risk because of a claim, traffic violation, or traffic accident that occurred more than 3 years before the date of application.
k) Insurer may not cancel coverage for accidents where insured was not at fault. — With respect to private passenger motor vehicle insurance, an insurer may not cancel or refuse to renew coverage based on the claims history of an insured where two or fewer of the claims within the preceding 3-year period were for accidents or losses where the insured was not at fault for the loss.
(l) Standards related to economic and business purposes. —

   (1) In the case of private passenger motor vehicle insurance, standards reasonably related to the insurer’s economic and business purposes under subsection (a)(2) of this section include, but are not limited to, the following and do not require statistical validation:

      (i) a material misrepresentation in connection with the application, policy, or presentation of a claim;

      (ii) nonpayment of premium;

      (iii) subject to § 27-609 of this title, revocation or suspension of the driver’s license or motor vehicle registration within the preceding 2-year period:

         1. of the named insured or covered driver under the policy; and

         2. for reasons related to the driving record of the driver;

      (iv) subject to § 27-609 of this title, two or more motor vehicle accidents or any combination of three or more accidents and moving violations within the preceding 3-year period for which the insured was at fault for the accidents;

      (v) subject to § 27-609 of this title, three or more moving violations against the insured or a covered driver under the policy within the preceding 2-year period;

      (vi) subject to § 27-609 of this title, conviction of the named insured or a covered driver under the policy of any of the following:

         1. a violation of § 21-902(a), (b), (c), or (d) of the Transportation Article;

         2. homicide, assault, reckless endangerment, or criminal negligence arising out of the operation of the motor vehicle; or

         3. using the motor vehicle to participate in a felony;

      (vii) subject to subsection (o)(1) of this section, any other standard approved by the Commissioner that is based on factors that adversely affect the losses or expenses of the insurer under its approved rating plan and for which statistical validation is unavailable or is unduly burdensome to produce; and

      (viii) subject to subsection (o)(1) of this section, any other standard set forth in regulations adopted by the Commissioner that is found to be reasonably related to the insurer’s economic and business purposes.

   (2) An insurer is not required to produce statistical validation that excludes at fault accidents or that makes any distinction between not at fault accidents and at fault accidents in order to sustain the insurer’s burden of persuasion under subsection (g) of this section with respect to a cancellation or refusal to renew for a reason that is not listed in this subsection.
(n) Factors to be considered in mitigation. —

   (1) Subject to the requirements of this article, if an insurer considers claims history for the purposes of canceling or refusing to renew coverage, the insurer may consider the following factors in mitigation of the proposed decision without producing statistical validation:

      (i) the severity of the losses;

      (ii) the length of time that an insured has been a policyholder with the insurer;

      (iii) loss mitigation of previous losses; and

      (iv) the availability of a higher deductible for the particular policy and types of losses.

What if the person who causes the accident does not have insurance?

If the person who caused the accident doesn’t have insurance, then you can collect under the uninsured motorist portion of your policy. Under the uninsured motorist portion of your policy, your insurance company will step into the shoes of the person who was at fault as if they had insurance coverage with your insurance company and will pay everything that you are entitled to receive through the uninsured motorist portion as if they insured the person who was at fault. When benefits are claimed under the uninsured motorist coverage, your own insurance company cannot cancel you or surcharge you or raise your rates.

What is an Uninsured motorist claim?

When you are involved in an accident that is the fault of another driver who either has no insurance or not enough insurance or has statutory immunity, you may be able to file a claim with your insurance company. If you are successful, then your insurance company will step in and pay some or all of your claim as if they insured the at fault vehicle. You will not be penalized for filing the uninsured motorist claim with your insurance company. Your rates cannot be raised and you will not be cancelled for claims paid under this portion of your policy. Even if your insurance company pays under the uninsured motorist portion of your policy, the at fault party will still be responsible, as your insurance company will likely sue the uninsured motorist to collect back the money they had to pay to you.

How Do You Collect Uninsured Motorist Benefits?

The injured insured has three alternatives when pursuing a claim involving an uninsured motorist:

  1. He or she may sue the at fault party in tort, obtain a judgment and then enforce the judgment against the UM insurer.
  2. The injured insured may sue the UM insurer and, as part of his or her case, prove that the at fault party’s negligence proximately caused his or her injuries.
  3. The injured insured may combine the tort and contract claims in a single action.

See attached link for more detail on uninsured motorist claims

What benefits can I collect in a motor vehicle accident?

There are many different benefits that you can collect in a motor vehicle accident. The first benefit you can collect is personal injury protection benefits which will pay medical expenses and lost wages up to $2,500.00. Personal injury protection benefits are paid under the insurance policy of the vehicle that you were in.

In addition you can collect for the damage to your car, as well as for the cost of a rental car. Finally, you can collect from the person that is at fault medical expenses for the past, present and future, lost wages for the past, present and future, an additional amount for pain and suffering, and damages for loss of consortium which means any loss to your marriage. These benefits are in addition to any benefits paid by your personal injury protection carrier. In effect you can be paid twice for medical expenses and lost wages.

How long does it take to settle an automobile accident claim?

Times vary on how long it takes to settle an automobile accident claim, although it can be divided into two categories. Category one would be cases that are quickly accepted by the insurance company and typically these cases involve the client going to the doctor and completing their treatment. Then usually thirty to forty-five days after the client has completed the treatment the case can be settled.

Category two are the cases that cannot be settled. In category two there are also two types of cases. Cases that are small and worth less than $10,000.00 usually involve filing suit in the District Court. These cases can take anywhere between three to six months after your treatment is completed. Cases that have to be filed in the Circuit Court which are typically worth more than $10,000.00 usually take anywhere from one to three years.

What is my case worth?

In evaluating a claim there are many factors that the auto accident attorney looks at in order to evaluate a claim. Included in those factors are the type of injuries, including whether there are fractures or any other physical signs of injury versus complaints with no visible signs of injury, whether there is a permanent injury, who the client is and what kind of witness the client makes, where the accident happened since some counties are known to give more generous verdicts than others, whether there was significant damage to the vehicles involved since judges and juries are more likely to believe injuries in serious looking accidents than they are in minor property damage cases, who the attorney is, what judge you have, how long the treatment lasted, who the doctors were that performed the treatment, whether there were any objective findings in the x-rays or MRI’s that would point to proof of injuries, whether there is any scarring and/or bruising, the age and sex of the client, whether the client has had any other accidents as the courts look very closely at cases where a client has filed more than one claim and tend to give less credence to people who have filed many claims, is the liability (i.e.) fault clear or disputed, as well as many other factors.

Baltimore auto accident attorneys who have been practicing for a long period of time and have tried many cases know how to give weight to each one of these factors. You can see that each case is different and there is no way for a Baltimore auto accident attorney to tell you the first day of an accident what the case is worth and the attorneys opinion of the value of the case can change as more information is gathered over a period of time. Any lawyer who promises you that he knows the value of your case based upon your initial interview, will most likely not be able to deliver on any promise he makes.

What if I cannot afford a lawyer to represent me for an automobile accident?

The attorney fee in an automobile accident is based on a percentage of any recovery and there is no requirement that any costs be paid up front. If the case is lost, then there will be no fee charged to the client.

Consultation: matas@ataslaw.com
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