Not So Fast..... (Continued from page 9)


crash?; (iii) Where were the drivers coming from, and going to?; (iv) Were any of the parties to the crash working at the time of the crash?; (v) Who owned the vehicles involved in the crash?; (vi) How did the operator of the vehicle that struck the client come into possession of the vehicle?; (vii) What property dam- age was sustained?; (viii) What was the adverse driver’s initial explanation of the accident, and what statements were made in the immediate aftermath of the crash?1


; (viii) Did the airbags inflate?;


(ix) Were there skid marks?; (x) Were seatbelts used? If so, did they work as they were supposed to?; (xi) What is the repair history of the vehicles involved in the crash? If the repairs were done incorrectly, was that a proximate cause of the collision?; and (xii) Photos should be obtained of the interior and exterior of all vehicles and of the roadway where the crash occurred. Obviously this list is not exhaustive, but it should provide you with some of the more important areas to cover in your initial investigation. The more facts that can be gathered,


the more potential arrows the attorney will have in his or her quiver to work with when it comes time to consider possible defendants and potential causes of action. While one may think that the initial fact gathering can be done inex- pensively and with little effort, if you are handling catastrophic injury cases, you need to be willing to spend a significant amount of time, money and resources on this initial fact investigation so that consideration of appropriate causes of action and/or defendants can be ap-


1


Maryland Rules of Evidence 5-803(b)(1) (2)(3) provide for admissibility of pres- ent sense impressions, excited utterances and statements of then existing mental, emotional and/or physical conditions, including statements relating to intent, plan, motive, design, mental feeling, pain and bodily health. Statements made by the operators in the immediate aftermath of the crash may also provide insight as to whether those involved in the crash were drunk, sick, and/or working.


Summer 2008


The more facts that can be gathered, the more potential arrows the attorney will have in his or her quiver to work with when it comes time to consider possible defendants and potential causes of action.


propriately undertaken. Failure to do so during this initial time period can be the difference between a fair and proper recovery and a small minimum policy limits recovery.


The Cause of Action Against The Adverse Driver


The most obvious defendant in any


automobile accident case is the adverse driver whose negligence caused the crash. When the injuries to your client are catastrophic, it is important to figure out how much liability-insurance cover- age this individual has, and whether the driver has personal assets that may allow the negligent driver to satisfy a judgment over the policy limits.2


If the adverse


driver has adequate insurance coverage, then it may not be necessary or cost effective to look for other defendants with additional insurance coverage.


In


catastrophic-injury cases, the reality is that the typical individual automo- bile-insurance policy will not provide adequate coverage, and alternative causes of action should be considered. Unfortunately, it can be difficult to


determine the amount of coverage prior to a lawsuit being filed. In Maryland, insurance companies take the position that they are not required to disclose coverage amounts prior to a suit being filed, and quite often, they will not tell you exactly how much coverage there is.3 Once a lawsuit is filed against an insured,


2


There are companies that perform asset checks for a fee. While asset checks can provide some useful information, they seem to have limitations. While they will show real property and automobiles owned by the person, they do not show bank account balances, brokerage account balances, and/or 401-K account balances which may be attachable in an excess ver- dict case.


Trial Reporter


the insurance company must disclose the amount of liability coverage. Maryland Rule 2-402 (c) specifically addresses this, and provides that: A party may obtain discovery of


the existence and contents of any insurance agreement under which any person carrying on an insurance business might be liable to satisfy part or all of a judgment that might be entered in the action or to in- demnify or reimburse for payments made to satisfy the judgment. In practice, if liability is clear, and if an


experienced insurance adjuster knows that the damages will exceed their in- sured’s policy limits, then they will either make a policy limits settlement offer (in which case you then know how much coverage there is), and/or they might tell you how much coverage they have. An- other alternative is to use a commercial company to obtain the liability limits.4


Cause of Action Against Employer of the Adverse Driver


Was the negligent driver working at


the time of the accident? If so, A cause of action against the employer of the


(Continued on page 13) 3


In many other states, insurance companies are required to disclose coverage amounts prior to suit being filed. Such pre-suit disclosure many times helps avoid un- necessary litigation. Perhaps the Maryland Legislature should consider enacting a statute that would require insurance companies to disclose coverage amounts prior to suit being filed.


4


One such company is MEA Services, Inc. Their website is www.measervicesinc.com, and their phone number is 800-330-3340. If the identity of the insurer is already known, they will charge about $100-$200 to ascertain the applicable policy limits in effect at the time of the accident.


11


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