ings, it becomes necessary to review the statute to determine what, if any, changes there have been made by the legislature to the statute in the most recent session of the legislature. A review of the provisions contained in §11-108 of Courts & Judicial Proceedings and all
What was the relationship between the
claimants and the deceased prior to the occurrence? If the claim is being made by a parent for the death of a minor child, was the minor child living with the par- ent or was the relationship one wherein the parent and child had no significant
Counsel on each side of the case have the same obligation to thoroughly prepare their cases for trial and to treat one another with the respect our profession requires.
amendments to the most recent session of the legislature must be reviewed to determine the non-economic cap ap- plicable to all plaintiffs in the wrongful death action. The determination of the number of claimants is required in order to determine the total cap applicable to the claim. After discovery has been completed,
the evaluation of the case is twofold. First, the evidence to be presented at trial must be objectively evaluated. What evidence will be presented on behalf of the claimants in seeking recovery under the statute and what will be the opposing evidence presented in the defense of the case on the issue of liability and dam- ages? Is there any evidence which will be presented in mitigation of damages? For example, in a case involving the death of an elderly woman in a nursing home in Baltimore City, a substantial mitigating factor in reducing the verdict in favor of the claimants was that none of the grieving claimants had visited the nurs- ing home within a year and a half of the occurrence. Contributory negligence is always an
issue to be considered. Was there con- tributory negligence upon the part of the deceased? While the jury may not find officially find contributory negligence as to result in a defendant’s verdict in a death case, it has been my experience that facts indicative of contributory negligence will often act as a mitigating factor in the award being made by the jury to the claimants.
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relationship before the time of the oc- currence? If the adult claimant is seeking recovery for the death of his or her par- ent, what was their relationship before the occurrence? Unless defense counsel has knowledge concerning the actual relationship between the claimants and the deceased, it will not be possible to properly evaluate those damages per- mitted under §3-904(d). An analysis must be made to determine which of the permitted damages are applicable in the case being defended. In short, even with such analysis, evaluation of wrongful death claims are difficult because of the unpredictability of juries in considering those damages permitted under the pro- visions of the Annotated Code, Courts & Judicial Proceedings, §3-904(d). In the case of the defendant tortfeasor
having minimal insurance limits with clear liability or probable liability upon the part of the defendant, the policy limits should be tendered as soon as the investigation confirms the negligence or probable negligence of the defendant. It serves no purpose to have expenses incurred by either the claimants or the defendant’s insurer by entering into unnecessary discovery. Of course, if the policy limits have been tendered and rejected, the preparation for trial must proceed to the same extent as if there were unlimited assets of the defendant. When the assignment of a case to de- fend a wrongful death action has been received, it is incumbent upon defense counsel to prepare the defense based
Trial Reporter
upon anticipated trial and not on an- ticipated settlement. Because of the uncertainty of result,
it has been my experience that a useful tool in the handling of wrongful death actions is the non-binding mediation before an experience mediator with a judicial background. Such mediation normally results in both the claimants’ counsel and defense counsel having a better insight into the strength or weak- ness of their respective cases. As indicated in the opening para-
graph of this article, it is my firm belief that there is not really a difference in perspective between claimants’ counsel and defense counsel in the handling of wrongful death actions. Counsel on each side of the case have the same obli- gation to thoroughly prepare their cases for trial and to treat one another with the respect our profession requires. n
About the Author
Robert K. Nead has practiced in the area of insurance defense litigation since 1960 when he became associated with the firm of O’Doherty, Hegarty and Gallagher. He is presently a partner with the law firm of Nead, Karey and Minton of Towson, Maryland continuing his practice in the area of insurance defense litigation. He attended the University of Baltimore Law School, graduating in 1954 and obtaining his Masters Degree from the University of Baltimore Law School in 1956. He is a member of the Maryland Bar since 1954 and the U.S. District Court. Robert K. Nead is a member of the Maryland State Bar Association, American Bar Association, Baltimore City Bar Association, Mary- land Defense Counsel, and Defense Research Institute.
Fall 2008
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