Ok (and I will likely reword in a different post as there are a few comments that point out ambiguity about this one). Nothing has been pursued or taken to court yet, that is what I am trying to decide. In phone/email conversation with a lawyer, he pointed out that MD is a contributory negligence state (even if the judge or jury find the plaintiff at 1% fault (i.e. should have been able to see the pothole) I am completely BARRED from recovery. I did not see it, it happens to be in the path of oncoming traffic where my attention was reasonably diverted to my right to look for cars, there were no signs, none of the workers told me to look out for it on my way out, and it was while walking from the exit of their store (after purchasing goods from them) on my way out to my car that was parked in one of their customer parking spaces. When I called the owner later that day, he said "yeah (sounded as if he was made aware of it by employees- 911 was called from their phone) and said "just come by when you are feeling better, we have insurance for that" So it sounds like I have more hope of getting at least my wages back (which I mentioned to him on the phone) just going there personally, rather than pursuing the time and trouble through the courts, considering this happened in Maryland, where I may not get ANYTHING back.
I'm sure if this happened in one of the "reasonable" states where at least SOME recovery can be made, even with comparable negligence, then it would be more worthwhile going through an attorney and the courts. Despite any valid and reasonable arguments I may have (in addition to owner's liability) in my defense that there was no assumption of risk, and that I was in no way negligent, it would only take the decision of judge or one/part of a jury to make this rightful legal attempt to recover, go straight down the drain in Maryland.
The insurance the store manager was probably referring to is a "med pay" policy provision of their general liability coverage, which will only pay medical expenses up to a certain limit ($5,000.00 typically). This type of insurance is paid without regard to fault. There would also be a general liability policy covering the premises, that pays for much more than just medical bills, and would include things such as pain and suffering, lost wages, permanent impairment, etc. If it was their lot that had the pot hole, they are liable, in the absence of their proving contrib or assumption of the risk on your part. Just because they raise the defense does not mean they prevail, or that they would not settle. It may result in a lower value based on the chance that they might prevail on such a defense, but these are the type of claims that can often result in a favorable settlement or judgment in the injured party's favor. The store manager will not be the one settling the claim, nor will he be able to 'accept liability" or offer you any money. Only the insurance adjuster assigned to handle the claim by the store's insurance company can do that. There's no point is relying on what the store manager says. However, you should report the claim so it is submitted to their insurance company. You should not, however, give a statement, recorded or otherwise, without talking to counsel. The insurance adjuster will take any statements or admissions you make to the store manager, as well as any recorded statement you give, and try to use those statements against you in order to deny the claim or make a low-ball offer. An open pot hole is something that the store/property owner would have knowledge, constructive or actual, that would satisfy the liability aspect of the claim. The question is whether you should have seen it. You may have a very good claim, liability-wise.
Thank you. I appreciate your response, it is very detailed and specific. So, in reporting the claim do I go there and give the owner the medical documents or just tell him what happened/when, and what should I be careful not to say?
This is why you should hire counsel. If you insist on proceeding on your own, just stay away from HOW the accident happened, and just say you were injured when you stepped/fell into/tripped on the pothole. You went for medical treatment and incurred bills. You will/may require additional treatment. You have not healed or recovered completely, and will follow up. You missed time from work. Get the name and contact info for both the person who you report this claim to, the store number (if a chain store with many locations, they have a store number), and the name, address and telephone number of the store's insurance company. Do not minimize or describe your injuries beyond the general locations where you felt pain. But really, you should not do any of this. A lawyer should submit the claim for you so that you do not screw this up. The claim could be lost as soon as you start to describe what happened, without you even realizing it. A lawyer can act as your go-between, shielding you from making any admissions against your own interests. This protects your version of what happened from the trained and experienced insurance adjuster who is going to try and steer your description into the ditch of contributory negligence and assumption of the risk.