The above “allotment” adopted the
requested apportionment sought by Plaintiff Illiano without any alteration and may accordingly provide some guidance as a model under similar cir- cumstances. The apportionment relied on the underlying economic report of the past and future economic losses for wages and household services incurred by both the husband and the daughter. These were juxtaposed against the past and future economic medical losses of Mrs. Scamardella to establish a pro rata ratio of each claim versus the other. A formula was devised which assumed that each party would realize the available cap amount for solatium and conscious pain and suffering. The formula also used the United States Government Life Expectancy Tables to establish the life expectancy for each party and credited the past and future medical bills. Each party’s claim was then assigned a value using this formula. By comparing this value with the others, each party received
a percentage representing a pro rata val- ue of the whole. This pro rata percentage was then applied against the available settlement proceeds to determine each party’s monetary share. This formula provided Mrs. Scamardella with about 7.5% of the available award, which was largely a function of her advanced age.
Practical Considerations Some readily identifiable practical
considerations arise out of this discus- sion. A partial list is as follows: 1. Where and if possible, represent all the beneficiaries.
2. Before suit is initiated, and time and circumstances permitting, identify and communicate with any “use” beneficiaries not already represented. Remember that before you accept representation for any “use” plaintiff, you must evaluate the real or potential conflict of interest with your existing clients.
Since this typically occurs before policy limits are known, a written disclosure of the potential conflict of interest signed by all parties is a good idea.
3. One option is to obtain a waiver of the claim by a “use” plaintiff. In any communication with a “use” plaintiff for this purpose, you should advise them of their right to counsel. Such a communication should explain the ramifications of any such waiver as well.
4.
In any communication with a “use” plaintiff, be wary. The precautions and prohibitions of The Maryland Lawyers’ Rules of Professional Conduct Rule 4.3 (“Dealing with Unrepresented Person”) and Rule 7.3 (“Direct Contact with Pro- spective Clients”) apply. While Maryland Rule of Civil Procedure 15-1001 requires an attorney to forward a copy of the Complaint, it does not specifically authorize oral
Fall 2008
Trial Reporter
17
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