is two years from the date of the accident. Workman’s Compensation benefits are particularly important to the cata- strophically-injured claimant because if the liability insurance is inadequate, at least the catastrophically-injured cli- ent’s lifetime medical expenses will be taken care of through the workman’s compensation claim. Some practitio- ners are hesitant to make a workman’s compensation claim when they will be making a third-party claim because the workman’s compensation insurance carrier will assert a lien on any third- party recovery, and if there is inadequate insurance coverage, this lien can become an obstacle to settlement. When a cli- ent has catastrophic injuries, however, it is crucial that all avenues of potential recovery be explored and preserved, and whenever possible, a workman’s compensation claim should be made.
Negligent Entrustment18 A cause of action for negligent en-
trustment can increase coverage because it adds an additional defendant, and it may trigger additional insurance
18
Practical examples of the use of a “negli- gent entrustment” cause of action are as follows: If the parent of an unlicensed 15-year- old child gives the child the keys to the family car, and the 15-year-old child gets drunk and negligently crashes into your client’s vehicle causing catastroph- ic injuries, then suit can be filed against the 15-year-old child for “negligence,” and against the parent for “negligent entrustment.” Two friends drive to a bar together in Friend A’s vehicle. Friend A and Friend B have dinner and polish off two bottles of wine. Friend A knows that Friend B has a bad driving record. At the end of the evening, Friend A (the vehicle owner) gives his keys to Friend B and asks Friend B to drive him home. On the way to Friend A’s house, Friend B crashes the vehicle into your client. Your client can sue Friend B for “neg- ligence” and Friend A for “negligent entrustment.” (iii) Your client is catastrophically injured in an accident with a tractor trailer. The tractor trailer operator has a poor driving record and has been
Summer 2008
policies. The Maryland Pattern Jury Instruction for Negligent Entrustment19 provides as follows: A person is liable for negligent en-
trustment who, directly or through a third person, supplies an item of personal property for the use of another, who, the person knows or has reason to know, is likely, because of youth, inexperience, or otherwise, to use it in a manner involving an unreasonable risk of harm to him- self or herself or to others. In Maryland, a negligent entrustment
claim will usually not trigger coverage under most homeowner’s-insurance policies because of the exclusion in such policies for torts relating to the use of motor vehicles (including negligent entrustment claims).20
of “strict liability” and has adopted the “crashworthiness doctrine.” Since most individual automobile-insurance policies do not provide adequate cover- age for catastrophic injuries, a product liability case may be the only avenue to obtain full compensation for your cat- astrophically-injured client. Therefore, in catastrophic-injury cases involving automobiles, at the outset of the repre- sentation, practitioners should take steps to preserve crucial evidence so that an expert can determine whether or not a product liability cause of action should be considered. This may include secur- ing the vehicles involved in the accident, and/or sending a letter to the custodian of any evidence that may need to be inspected and/or preserved.21
That being said,
however, practitioners should read the policy language of any applicable homeowner’s-insurance policy or gen- eral-liability insurance policy carefully to make sure that the exclusion related to automobiles is specifically included in the policy. Even if there is not insurance coverage, if the negligent entrustor has sufficient assets to satisfy a judgment and/ or assets to contribute to a global settle- ment, then the negligent entrustment cause of action should be considered.
Product Failure Practitioners should be aware that
even though product liability cases against automobile manufacturers are expensive and difficult to successfully prosecute, Maryland law on product liability is relatively favorable to claim- ants. Maryland recognizes the doctrine
Strict Liability In addition to traditional negligence
claims against the automobile manufac- turer and automobile seller, Maryland recognizes the doctrine of Strict Liabili- ty. This is important because to establish a prima facie case of strict liability, there is no need to prove any particular act of negligence on the part of the automo- bile manufacturer. Instead, the focus is on the product itself (the automobile)
(Continued on page 19) 20
involved in numerous prior accidents while driving the tractor trailer. Your client can sue the tractor trailer driver for “negligence,” and the Safety Man- ager of the tractor trailer company for “negligent entrustment” for authorizing the tractor trailer driver with the poor driving record to operate his tractor trailer on the operating authority of the tractor trailer company.
19
MPJI-CV 18:5 (2002) citing Broadwater v. Dorsey, 344 Md. 548, 688 A.2d 436 (1997).
Trial Reporter
Pedersen v. Republic Insurance Co., 72 Md. App. 661, 532 A. 2d 183 (Md. App. 1987). However, Maryland practitioners should be aware that the Appellate Courts in New Jersey have found that a similar exclusion in a homeowners insurance policies did not apply. Therefore, if the negligent en- trustment of the vehicle occurred in New Jersey, it is quite possible that coverage can be obtained from the homeowner’s insurance policy. See McDonald v. Home Insurance Co., 97 N.J. Super. 501, 235 A.2d 480 (NJ 1967). For a summary of the law on this issue in various jurisdictions see 6 ALR 4th
555 “Construction and Ef-
fect of Provision Excluding Liability For Automobile-Related Injuries Or Damage From Coverage Of Homeowner’s or Per- sonal Liability Policy.” David B. Harrison, J.D.
21
See Miller v. Montgomery County, 64 Md. App. 202, 494 A.2d 761 (Md. App. 1985) for a discussion of the appropriate rem- edies for spoliation of evidence.
17
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