regulated by the Insurance Article of the Maryland Code, Medpay Coverage is not. Therefore, the policy language regarding Medpay Coverage will govern such claims. If the catastrophically-injured client
has PIP Coverage or Medpay Coverage available to them on an insurance policy issued in a state other than Maryland, then that policy language needs to be read carefully and legal research needs to be done to determine what effect, if any, the PIP claim may have on any subsequent liability claim.13
Stacking of Insurance Coverages
Stacking of insurance coverages is the
process by which an insured is covered by more than one insurance policy, or by a policy covering multiple vehicles, and, therefore, attempts to “stack” multiple coverages in order to ensure adequate compensation for a victim’s injuries. Unfortunately for our catastrophical-
13
Maryland practitioners should be aware that if a PIP claim is made on an insurance policy issued in the District of Columbia, then a civil liability claim cannot be made in the District of Columbia’s Courts unless a statutorily imposed injury threshold is met. Victims are required to make a writ- ten election between a D.C. PIP Claim and a D.C. liability claim within 60 days of the accident. See D.C. Code § 31-2405 which provides, in relevant part: “(a) A victim shall notify the personal in-
jury protection insurer within 60 days of an accident of the victim’s election to re- ceive personal injury protection benefits. (b) A victim who elects to receive per- sonal injury protection benefits may maintain a civil action based on liability of another person only if: (1) The injury directly results in substantial permanent scarring or dis- figurement, substantial and medically demonstrable permanent impairment which has significantly affected the ability of the victim to perform his or her professional activities or usual and customary daily activities, or a medically demonstrable impairment that prevents the victim from performing all or sub- stantially all of the material acts and duties that constitute his or her usual and customary daily activities for more than 180 continuous days; or
16
ly-injured clients, stacking of insurance coverages for policies issued in Maryland is not permitted. 14
Section 19-513 (b)
of the Insurance Article of the Mary- land Code explicitly states that “…a person may not recover benefits… from more than one motor-vehicle liability-insurance policy or insurer on a duplicative or supplemental basis.” However, our neighboring jurisdictions including Virginia, West Virginia and Pennsylvania, do allow for some form of stacking of uninsured/underinsured motorist coverages. When representing the catastrophically-injured client, it is therefore crucial to consider whether the client has uninsured/underinsured motorist coverage available to him under insurance policies issued in a State other than Maryland that may be stacked.15
The Workman’s Compensa- tion Claim
15 If the catastrophically-injured client
was working at the time of the crash, then a timely workman’s compensation claim should be made.16
Practitioners
(2) The medical and rehabilitation expenses of a victim or work loss of a victim exceeds the amount of personal injury protection benefits available. (c) Nothing in subsection (b) of this section shall prevent the survivors of a victim whose death arises out of the maintenance or use of a motor vehicle from maintaining a civil action based on the liability of another person for the loss and noneconomic loss result- ing from the victim’s death regardless of whether the victim had previous to his or her death elected to receive personal injury protection benefits. (d) The ins ure r must no- t i fy any ident i f iable vict im in writing of the 60-day election period. (e) The 60-day election period may be extended upon the mutual written agreement of the victim and the insurer. (f) If a victim is incapacitated or in some other way unable to make the election, it may be made by the next closest relative, or if there is no relative, an individual tak- ing responsibility for the victim’s affairs. (g) If the covered victim fails to make an election within the 60-day period, the mandatory liability insurance coverage applies.
Trial Reporter
should keep in mind that the deadlines for filing workman’s compensation claims are much shorter than the three- year statute of limitations applicable to filing a negligence lawsuit in a third- party liability case. The deadline for notifying an employer of an accidental injury is 10 days after the accidental injury, and 30 days after an accidental death.17
The deadline for filing with the Workman’s Compensation Commission 14
See Insurance Article, § 19-513 (b), Raf- ferty v. Allstate, 303 Md. 63, 492 A.2d 290 (Md. 1985) (holding that recovery of un- insured motorist benefits in excess of the statutory minimums from more than one insurer is statutorily prohibited); Howell v. Harleysville Mut. Ins. Co., 305 Md. 435, 505 A.2d 109 (Md. 1986) (holding that commercial fleet policy insuring several vehicles for which separate premiums were paid did not permit stacking or aggregat- ing of uninsured motorist coverage).
Virginia: See Cunningham v. Insurance Co. of North America, 213 Va. 72, 189 S.E.2d 832 (1972) (holding that the uninsured motorist coverage in a multi-vehicle policy was increased by the number of vehicles insured, and that uninsured motorist coverage in such cases could be stacked unless the plain and unambiguous lan- guage of the policy prevented it); West Virginia: See State Automobile Mutual Insurance Co. v. Youler, 183
W.Va. 556, 565, 396 SE 2nd
737, 746 (1990) (recog-
nizing the permissibility of stacking of uninsured and underinsured motorist coverages in West Virginia, and holding that antistacking language contained in the applicable insurance policy was void as against West Virginia’s public policy of full indemnification); Pennsylvania: See 75 PA C.S.A. §1738 “Stacking of Uninsured and Underinsured Benefits and Option to Waive.”
16
If the catastrophically-injured claimant is entitled to Maryland PIP benefits then the PIP Benefits should be applied for and obtained prior to the filing of the work- man’s compensation claim. MD Code, Insurance, § 19-513 (e) provides that PIP benefits shall be reduced to the extent that the recipient has recovered benefits under the worker’s compensation laws.
17
Lab. & Emp. 9-704 (b). It should be noted that failure to give the required notice bars a claim unless the Commission excuses the failure on the ground that notice could not have been given or that the employer- insurer was not prejudiced by the lack of notice. See § 9-704(d), § 9-705(b) and § 9-706 (a).
Summer 2008
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