LEGAL GUIDE
Written by attorney Jonathan Scott Smith | Feb 14, 2012

Evaluating Maryland Car Accident Claims

If you have been injured in a car accident in Maryland, you probably want to know the value of your personal injury claim. Quite simply, you want to know, “what is it worth?" Set forth below are the factors commonly considered in arriving at the fair value of bodily injury claims in Maryland automobile accident cases.

1.Fault.

Whether another person is at fault, and to what extent, is the first and most important factor. In most car accidents it is obvious and undisputed which driver is at fault, whether from rear end collisions, failing to stop at stop signs, going through red traffic lights, or failing to yield the right of way.

In some cases, insurance companies will look for any way to avoid or minimize their insured driver’s responsibility. Maryland is one of the only states left that recognize the affirmative defense of “contributory negligence," which is where the injured person failed to exercise reasonable care for their own safety, and caused or contributed to the cause of their injuries.

A common situation involves multiple vehicle, or “chain" collisions. For example, assume three cars are involved in a rear end collision. If the first driver in line states that they felt two impacts, the insurance company for the third car may argue that the second car rear ended the first car, and then the third car rear ended the second. The insurance company may argue that the property damage to the front of the second car was not caused by their insured. In addition, the insurer may refuse any payment on the injury claim by claiming that the driver of second car was contributorily negligent, or only accept responsibility for one-half of the injury claim.

2.Nature and Extent of Impact.

The nature and extent of the impact, and the resulting property damage, can carry a lot of weight in determining whether an insurance company will offer a settlement and, if so, the amount. Special attention must be paid to those accidents resulting in minimal damage. An insurance company will reason that if the damage to the vehicle is minor, then it is unlikely that a driver or passenger sustained any injury, or anything more than a minor injury. Insurance companies litigate thousands of cases and know from experience that judges and juries frequently award nothing, or perhaps only out of pocket expenses only, in these cases.

A rough rule of thumb is that if the damage is difficult to see, or appears minor, in a photograph, or the repair estimate or bill is less than $1,000.00, it will be difficult or impossible to obtain any personal injury settlement voluntarily from a car insurance company.

On the other hand, if the damage in a photograph appears extensive, or if the vehicle is declared a total loss, then this will cause greater value to be placed on the claim and usually result in a higher settlement.

3.Initial Injury and Treatment.

The nature and extent of the injuries is an important factor in evaluating a car accident claim. Many accidents cause neck and back strains, or bruises from seat belts and air bags that deployed. These “soft tissue" injuries will not be valued as much as more serious injuries such as fractures, ruptured or herniated disks, facial fractures, serious lacerations resulting in scarring and disfigurement.

Another important factor is whether the injured party was treated and/or transported by an ambulance to a hospital emergency room, or whether the first medical treatment occurred within a couple of days after the accident, or much later. The longer a person waits to see a medical provider, the more likely questions will be raised whether they were in fact injured in the accident.

The best scenario is when the injured party is transported by ambulance to a hospital emergency room, and then receives prompt follow-up treatment by their primary care physician or a specialist, such as an orthopedic surgeon.

4.Follow-up Treatment.

In cases where the injured claimant is treated at the emergency room, followed by a couple of doctor visits, the claim will be evaluated as minor. Often, experienced car accident lawyers will not handle these cases because the time and expense to open a file, obtain police reports and medical records and bills, is not worth the eventual fee.

People who are treated at an emergency room, regularly see treating physicians, receive physical therapy, and undergo common diagnostic tests such as x-rays, MRI’s, and CT scans will have their claims evaluated much higher. The most serious cases involve treatment for fractures, in patient surgeries, long term treatment and rehabilitation, and are evaluated higher. Car accidents involving fatalities are evaluated as the most serious and usually receive the highest awards.

Insurance companies also consider the identity of the treating physician. Does the health care provider treat a high volume of injured claimants? Do personal injury lawyers regularly refer clients to the provider? Was the injured party referred to the doctor or chiropractor by their attorney? Insurers also consider the nature and extent of the treatment. Physical therapy or chiropractic treatment lasting no more than two to three months is considered reasonable. Long term therapy, or therapy initiated or repeated many months after the accident is considered unnecessary or unreasonable and will be discounted or ignored in the evaluation of the claim. Under Maryland law, a negligent party is responsible only for the “reasonable and necessary" treatment of the injured person.

5.Effects on Claimant and Activities.

One of the most important elements of an injury claim is the physical pain, and emotional suffering, that a person sustains as a result of the injuries and any treatment.

An important question is what effects the injuries have on the injured person. This runs the gamut from the inability to work, attend school, engage in the usual activities of daily living, recreational pursuits, social activities, family life, and marriage. The extent of the effects, and the duration, are evaluated. Often, little or no documentation will appear in medical records. An injured party can document this on a calendar, in a journal, or with documents prepared by third parties.

6.Economic Losses.

Economic losses include medical expenses and lost income. Medical expenses includes hospital treatment, doctor’s bills, physical therapy bills, the cost of medical appliances and prescriptions, and diagnostic tests, such as x-rays, MRI’s, CT scans, nerve conduction studies, etc. A claim can be made not only for past medical expenses, but also for medical expenses that a medical doctor or other expert states are likely to be incurred within a “reasonable degree of probability." This is defined as being more likely so than not so (or at least 51%). The mere possibility that an injured person might have surgery, or incur other future medical treatment does not meet this test and is not provable legally.

Economic losses for lost income include lost income from time missed from work, even if the injured party used sick or disability leave and received their normal pay. This is so because the law recognizes that their sick leave or other work benefit was reduced. Most people return to work. In serious injury cases, the resulting disability may reduce the injured person’s earning capacity. This is compensable and involves experts to prove. Often experienced personal injury attorneys will have the client evaluated by a vocational rehabilitation expert to assess the estimated income the injured person would have received if the injuries had not occurred, compared with the estimated income after the injury and disability. Next, an economist determines the respective income streams and work life expectancy, and reduces the difference to present value.

7.Permanency.

Fortunately, the typical person injured in a Maryland car accident undergoes medical treatment and returns to their normal functional state after reaching their “maximum medical improvement."

In more serious cases, people injured in motor vehicle collisions are left with impairments after treating professionals have done all that is possible. The resulting permanent impairments are significant factors that should result in a much higher settlement. Life expectancy tables can be consulted to determine the estimated time remaining in the injured person’s life during which they will endure the permanent impairment, pain, and effects on activities.

8.“Horrible Factor."

This refers to a variety of situations where a claim will be given more value than another case where the injuries, treatment, and economic and non­-economic losses are the same. For example, a case where the accident was caused by a drunk driver with a revoked license will have more value than where the negligent driver is a nun driving home from volunteer work at a soup kitchen.

9.The Parties.

Some parties are more presentable, or sympathetic, than others. Accidents caused by tractor trailers, young inexperienced drivers, drivers engaged in texting or cell phone calls, will be more likely to be won by claimants. Claimants who make a good appearance are more likely to receive higher awards. Race also plays an important factor. An African American claimant in Baltimore City or Prince George’s County is likely to be more successful because jurors are predominantly of the same race.

10.Jurisdiction.

Some Maryland jurisdictions are known to be more likely to award higher verdicts than other more conservative ones where defendants are more likely to win, or where the awards are lower. Baltimore City and Prince George’s County are known to be more claimant friendly and juries more likely to award higher amounts. Suburban counties, counties in Western Maryland, and counties on Maryland’s Eastern Shore are more conservative.

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