$1,750,000.00 – Seventy four year old Pedestrian was struck by truck in crosswalk in Maryland. Pedestrian found lying on back with right leg pinned at the knee underneath front passenger wheel of truck. A hydraulic car jack was required to remove pedestrian’s leg from underneath the tire of the truck before she could be placed in the ambulance. Pedestrian suffered an open right leg fracture. Despite multiple surgical procedures and aggressive rehabilitation modalities, pedestrian has significant permanent, disfigurements, mutilation and scarring on her leg and abdomen as well as functional limitations and chronic pain which interfere with daily activities for the rest of her life including climbing, normal gait, kneeling, managing stairs, and walking long distances. Her knee range of motion is severely restricted. She spends much of her day in a wheelchair. Life expectancy 10 years.
$2,250,000.00- Plaintiff at the time of the accident was in her 30’s, married, had 3 children and was 7 months pregnant with a viable fetus. Both mother and fetus died as a result of the accident.
Medical expenses were minimal. Plaintiff worked 2 jobs. In addition there were funeral expenses.
When a victim dies because of the tortious conduct of someone else, two entirely different types of claim may arise. One is a survival action commenced or continued by the personal representative of the deceased victim, seeking recovery for the injuries suffered by the victim and prosecuted just as if the victim were still alive. It is called a ‘survival action’ in the sense that the claim has survived the death of the claimant. The other is a wrongful death action, brought by the relatives of the victim and seeking recovery for their loss by virtue of the victim’s death. In the first, damages are measured in terms of harm to the victim; in the second, damages are measured in terms of harm to others from the loss of the victim. In the first, the personal representative serves as the posthumous agent of the victim; in the second, his surviving relatives do not serve as his agent at all. They act in their own behalf.
Damages for the survival action are collected by the personal representative of the estate and include emotional distress due to the loss of a fetus, conscious pain and suffering of the deceased prior to her death, pre impact fright, medical and funeral expenses of the deceased, as well as any loss of wages incurred prior to the death of the deceased.
The purpose of survival statutes is to permit a decedent’s estate to bring an action that the decedent could have instituted had he or she lived. Here, there is no question that, had she lived, the decedent would have been permitted to recover damages for the “pre-impact fright” she suffered before crashing into rear of the tractor-trailer. Beynon v. Montgomery Cablevision Ltd. Partnership 351 Md. 460, 718 A.2d 116. Pursuant to the principle that damages for “pre-impact fright” are recoverable when the decedent experiences it during the legitimate window of mental anxiety, that window opened when the decedent became conscious of the fact she was in imminent danger, and it closed with her death in a car crash; as a result of the feared impact-the car accident- decedent’s fright was capable of objective determination that resulted from the decedent’s apprehension of impending death and the collision itself. Beynon v. Montgomery Cablevision Ltd. Partnership 351 Md. 460, 718 A.2d 116. …evidence of “pre-impact fright,” the trial court instructed the jury that it could consider and make an award for “pain, suffering and mental anguish” that the decedent experienced before the crash. Beynon v. Montgomery Cablevision Ltd. Partnership351 Md. 460, 718 A.2d 1161
With regard to the wrongful death action, automatic standing is given in § 3-904(a) only to a spouse, child, or parent of the deceased person. Section 3-904(b) provides that, if there are no such persons, any person related to the deceased by blood or marriage “who was substantially dependent upon the deceased” may file the action. In the wrongful death action, “Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered *** shall be divided among the above mentioned parties, in such shares as the jury by their verdict shall find and direct; provided that not more than one action shall lie for and in respect of the same subject-matter of complaint,” etc. . STEWART v. UNITED ELECTRIC LIGHT & POWER CO. 104 Md. 332, Because Plaintiff was married to and had two children and had one living parent , the wrongful death action accrues to all of the above.
The damages for wrongful death include pecuniary loss or benefit as well as“… damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education, where applicable.” In Daley v. United Services Automobile Assoc., 312 Md. 550, 553 n. 2, 541 A.2d 632, 633 n. 2 (1988), we referred to those kinds of damages as “solatium damages.” A husband and wife jointly may recover for injury to one spouse which causes a loss of society, affection, and conjugal fellowship, including the loss or impairment of sexual relations between them.
Because deceased was seven months pregnant at the time of the accident, the plaintiffs have two wrongful death claims and two survival action claims. In State v. Sherman, 234 Md. 179, 198 A.2d 71 (1964), the court created a cause of action on behalf of a viable fetus who was stillborn. In Sherman, the mother of a viable child suffered serious bodily injury as a result of an automobile accident. The child, who was a viable fetus in the ninth month of development, was delivered stillborn shortly after the accident. The Court of Appeals held that a cause of action could be maintained on behalf of the viable fetus to recover for its prenatal injuries. Later in Group Health Ass’n v. Blumenthal, 295 Md. 104, the Court of Appeals affirmed that a cause of action lies for prenatal injuries to a viable child who is either stillborn or born alive and to a nonviable child who is born alive. The cause of action includes a wrongful death action as well as a survival action. Smith v. Borello, 370 Md. 227
$100,000.00– On 4-7-13 Plaintiff was eastbound on Route 40 and told the police after she entered the intersection the light turned yellow. That was all she remembered. When she woke up she was at University of Maryland Shock Trauma. Her injuries included right ankle fracture, fracture of the right wrist and a neck fracture of C2, Plaintiff was a diabetic. Eventually she needed to have her leg amputated due to complication from her diabetes and her ankle.
The police report indicated that Plaintiff was traveling on eastbound on route 40. The defendant told police and later testified in her deposition she had been sitting at a red light on Winter lane which would be on the right side of plaintiffs vehicle. When the light turned green she proceeded to make a right hand turn and had completed her turn and traveled several feet before her vehicle was struck by the Plaintiffs vehicle. At the scene of the accident, a witness appeared who verified the defendant’s story and later confirmed the story under oath. The police report found the plaintiff ran the red light and was at fault for the accident. Plaintiff’s insurance company accepted responsibility and paid for the car damage for the other driver but could not agree on a figure to settle the bodily injuries part of the case. Plaintiff hired one law firm who handled the case for two and one half years and then told Plaintiff she had no case.
Plaintiff hired my office six months before the statute of limitations would expire. When I analyzed the facts one factor stood out. The plaintiff’s vehicle had damage only to the left side of her vehicle. How can defendant have damage to the left side of her car if Plaintiff’s car was coming from the right. An accident reconstruction expert was hired who agreed that the defendant and her witnesses’ story were impossible and in fact the defendant had to have been coming from the plaintiffs left side not the right side blowing a big hole into the credibility of defendant and her witness. We also determined that defendant and her witness were friends. Case shortly thereafter settled for policy limits.
$600,000.00 Lead paint settlement- child was poisoned by lead paint in Baltimore City House-sustained permanent neurological injuries
$250,000.00- Plaintiff was riding his motor cycle when he was cut off by Defendant who was exiting from a side road. Plaintiffs suffered numerous injuries including a fractured leg which required numerous surgeries. Medicals exceeded $50,000.00. Case settled for policy limits.
$100,000.00-Plaintiff was a passenger in defendant’s vehicle when Defendant fell asleep and went off the side of the road and struck a tree. Plaintiff had head injuries and broke his leg. Case settled for policy limits.
$350,000.00-Plaintiff was a pedestrian who was struck by defendant who had just left a bar and was intoxicated. Defendant was driving a company vehicle at the time. The Insurance Company denied coverage alleging that Defendant was only allowed to use the vehicle for company business and therefore was not a permissive user at the time of the accident. After filing suit and taking depositions, I was able to determine that defendant had been at a company party the evening of the accident and drove away from the company party in the company car. In addition he had a prior DWI. When we investigated the prior DWI, we were able to determine he had been driving the same company vehicle when arrested for the prior DWI. Company shortly after being informed of these facts withdrew their claim of no permissive use and settled.
Appellate Cases Making New Law brought by Marc J. Atas
Filing appeals to the Court of Special Appeals and Court of Appeals involve hundreds of hours of lawyers time as well as substantial amounts of money in court and transcript costs. Most lawyers do not file these appeals unless the client pays for the appeal. My philosophy has been different. If the issue seems novel, seems to come up repeatedly and if it seems that the lower courts have made a wrong decision, I have taken it upon myself to file the appeal, advance the costs and donate the hours. Two cases that resulted in reported opinions were:
Moore v Component Assembly Systems Inc. 158 MD App 388, 857A. 2nd 549– I represented Mr. Moore. The facts of the case were as follows: Mr Moore needed foot surgery. However shortly before the foot surgery date his underlying heart disease worsened and he needed non work related stent surgery and was ordered by his Doctor to remain on aspirin therapy for at least a year. In order to have his work related foot surgery he needed to be able to stop his aspirin therapy for two because aspirin is a blood thinner and helps to prevent clotting which could result in another heart blockage. Because of the blood-thinning effect of the aspirin, with its attendant danger of bleeding complications during surgery, the foot doctor declined to go forward with the foot surgery until he received assurance from the cardiologist that the aspirin therapy could be safely discontinued for a period of two days. The cardiologist said it would be unsafe to do so for at least a year. He eventually was cleared for and has surgery 14 months later. The Workers Compensation Insurance Company felt it would be unfair to continue paying Mr. Moore for being out of work because the surgery was being delayed due to an unrelated heart condition. Mr. Moore’s claim for lost wages was denied both by the Workers Compensation Commission and then on appeal by The Circuit Court for Baltimore City. An appeal was filed to the Court of Special Appeal which reversed the two lower courts.
The Court of Special Appeals held: The law in Maryland has long been settled that a claimant may not prolong a period of compensable disability by refusing to submit to medical or surgical treatment if, objectively measured, a reasonable man would ordinarily submit to treatment under similar circumstances. If, on the other hand, it would be objectively reasonable to refuse to submit to treatment or to postpone treatment, compensability for the continuing disability is not adversely affected. Notwithstanding the prolongation of a temporary disability that might, with surgery, have been ameliorated, if the cause for the prolongation was objectively reasonable, the employer’s responsibility for the temporary disability continues unabated. In this case, Dr. Weiner’s refusal to perform foot surgery on Moore until Moore’s cardiologist gave him clearance to discontinue for 48 hours the use of blood-thinning aspirin was indisputably reasonable. The danger of “bleeding complications” during the surgery posed a threat to Moore’s life.
This case is important because there are many times where a medical procedure is delayed due to unrelated conditions, but as long as the decision to delay the treatment is medically reasonable, then the injured employee is entitled to be paid during that period of delay. I recently successfully argued this case to support the proposition that my clients delayed surgery due to a pregnancy which occurred after the accident should not bar her from collecting lost wage benefits until after the child was born and she was cleared for surgery by her gynecologist.
Tina Gable v. Colonial Insurance Co of California 313 Md 710, 548 A.2d 135, is a Maryland court of Appeals decision. In this case, I represented Ms Gable who was injured in a car accident on the job. She refused to file a workers’ compensation claim. Instead she filed a Personal injury claim under her automobile policy with Colonial Insurance in order to have her medical bills paid. Colonial refused to pay the medical expenses stating their policy and Maryland law would require her to file the workers compensation claim. Ms Gable lost her claim originally in the District Court, than lost on appeal to the Circuit Court. Both Courts were reversed by the Maryland Court of Appeals, Maryland highest court.
The Maryland Court of Appeals held : The language of § 543(d) shows a legislative intent to provide offsets only for workmen’s compensation benefits actually received and not for future benefits. The subsection provides for a deduction only for workmen’s compensation benefits that the claimant “has recovered.” The General Assembly drew a sharp distinction between workmen’s compensation benefits which have been received and those benefits which have not. To allow a deduction for unrecovered benefits would insert an additional exception to the provision mandating PIP coverage. As a matter of statutory construction, where the Legislature has required specified coverage in a particular category of insurance, and has provided for certain exceptions or exclusions to the required coverage, additional exclusions are generally not permitted. We hold, therefore, that an automobile insurer may only deduct from PIP benefits the amount of workmen’s compensation benefits actually received. To the extent that the insurance policy exclusion in the case at bar is inconsistent with this holding, it is void.
This case is important because prior to this ruling insurance companies would refuse to pay personal injury protection benefits any time the car accident was work related. This situation would come up all the time. Since this ruling, occasionally I receive the same argument until I forward a copy of the case.