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Don't Leave Money on the Table

Posted on behalf of Goldberg Finnegan, LLC on Jul 31, 2017 in Firm News

Trial Reporter magazine coverOriginally published in Trial Reporter, Journal of the Maryland Association for Justice
By Kevin Goldberg

As attorneys representing those seriously injured or killed as a result of the negligence of others, it's important that we consider all potential avenues of recovery and causes of action that may help our clients. Many law firms limit, their representation of client s exclusively to one area of practice. Firms tend to be either Medical Malpractice Firms, Car Accident/Personal Injury Law Firms, Social Security Disability Law Firms, Mass Tort Law Firms, or Workman's Compensation Firms. Sometimes a single law firm will handle several of these case types, but almost no law firm regularly handles all of them. This is understandable considering the complexities and nuances of each practice area.

In order for our most seriously injured clients to have the opportunity to receive the maximum compensation for their injuries, it is critically important that trial lawyers understand at least the basics of other related practice areas. This allows us to recognize when our injured clients have a tangential claim that can be pursued, and that can sometimes be worth more to the client than the underlying claim that the attorney was initially retained for.

This article sets forth essentially a checklist, and the basics, for some of the various claims that should be considered when representing individuals with serious injuries.

(i) Third Party Liability Claim Against Negligent Tortfeasors

The most obvious cause of action, and the cause of action that probably brought the client to your firm in the first place, is the negligence claim against the individual that caused the injury (the tortfeasor). If the client comes in for representation as a result of a car crash, the third party liability claim will be against the negligent driver. If the client comes in as a result of medical malpractice, the third party claim would be against the medical provider(s) that caused the injury. If the client comes in as a result of another type of personal injury (e.g. slip and fall or dog bite), the third party claim would be against the negligent parties that caused the injury.

(ii) Product Liability Claims

If there is a potential third party claim for product liability (e.g. airbag injuries, vehicle roll overs, tire defects, and/ or seat belt malfunctions), it is important to preserve the vehicle, and to send out an appropriate evidence preservation letter. This is especially important when injuries are catastrophic and/or in wrongful death cases. Whereas most auto insurance policies provide limited coverage, defendants in product liability claims have much deeper pockets and larger insurance policies come into play. Product Liability claims can involve any component or system in a vehicle, but some areas to be on the look-out for are: tire defects, roll-overs, seat belt defects, general crashworthiness, and airbag defects. Keep in mind that contributory negligence is not a defense in a strict liability product liability claim.1

When a potential product liability claim is suspected in the context of a car crash case, it's a good idea to bring in co-counsel with particular expertise in product liability auto claims. They can help preserve the evidence and may even pay the cost of investigation.

(iii) First Party Claims for Uninsured Motorist Coverage/Personal Injury Protection Coverage and Med Pay Coverage

First party benefits should be considered in every auto crash case. Be sure to make a claim for all available Personal Injury Protection (PIP) and Uninsured Motorist Benefits.2 If the at-fault party cannot be identified, is uninsured, or is underinsured then a claim for Uninsured Motorist Benefits should be pursued. Remember that there is coverage for first party benefits (PIP/Uninsured Motorist Coverage) for named insureds, permissive users, and resident relatives. At intake, be sure to obtain the names of resident relatives - not just parents or children but also cousins, aunts, uncles, etc. - who live with your client who may have separate auto policies that would provide coverage.

(iv) Workman's Compensation Claims

If your client was on the clock working at the time of the injury, then a claim for workman's compensation benefits should be made. At intake, be sure to find out detailed facts about where your client was going and where he/she was coming from at the time of the crash. Was your client on the clock working? Was your client travelling between two job sites? Was your client picking up or dropping off a co-worker at the time of a car crash? Workman's Compensation benefits often provide benefits above and beyond what third party liability and first party liability provide because workman’s compensation benefits include lifetime medical care. Generally, the employer must be notified of the claim within 10 days after an injury, and/or within 30 days after death.3 The employee must file a claim application with the Workman’s Compensation within 60 days after the injury.4 While the Workman’s Compensation Commission has statutory authority to waive the 60 day requirement, there is an absolute deadline of 2 years to file a claim with the Commission.5 An Employee Claim Form must be filed with the Workers Compensation Commission within 2 years of the injury. The deadline for filing a workman's compensation claim for death benefits in Maryland is 18 months from the date of the death.6

(v) Social Security Disability and SSI Claims

If your client's injuries are severe, and may keep your client out of work for a year or more, it is important to consider advising the client to file a Social Security Disability Claim. If your client meets the Social Security Administrations definition of "disabled,” and has a well-documented work history, he/she will be eligible for "Social Security Disability Insurance Benefits, known as "Title II Benefits." These benefits are not needs based.

If your "disabled" client does not have a well­documented work history, he/she may still be eligible for Supplemental Security Income Benefits (SSI), known as "Title 16 Benefits.” Unlike Title II Benefits, SSI benefits are needs based, meaning your client cannot have assets in excess of the minimum threshold.

It is important to file early because the process can take over two years from the time of filing until benefits are paid. If you are not set up to handle Social Security Disability Claims in your own office, you can refer your client to their local Social Security Office to file for benefits, to the Social Security Website (www.ssa.gov) or send your client to a law firm that regularly handles Social Security Disability Claims. Many Social Security Disability Lawyers will assist your client in completing the initial application for benefits. If your client's initial claim for benefits is denied, a Request for Reconsideration or Appeal must be filed within 60 days of receipt of the denial. Your client will be best served, and will have the greatest likelihood of success, if they hire an attorney that specializes in Social Security Disability Claims to represent them in this process.

(vi) Private Disability Claims

It is important to find out at intake whether your client has private disability insurance for either short term or long term disability. If so, consider obtaining a copy of the applicable policies to advise the client whether to make a claim or not. If your client is out of work, private short term disability insurance can often provide much needed financial support quickly at a time of need. If the injuries are serious, and if there is need for long-term disability coverage, you should advise your client to hire an attorney to assist them with that. Keep in mind that most private long term and short term disability policies are governed by ERISA, and that if the claim is denied, or benefits cut off. there is often a very limited time frame of just 180 days to file an appeal or lawsuit.

(vii) Life Insurance

When representing the family of someone killed in an accident it is good practice to remind the next of kin to locate any life insurance policies that the decedent may have had. If the claim is wrongfully denied, the family members and potential beneficiaries may need legal representation for this as well.

(viii) Mass Tort Claim

A mass tort is a civil action involving numerous plaintiffs against one or a few corporate defendants in state or federal court. Mass tort cases filed in Federal Court are often consolidated into a Multi-District Litigation Proceeding, known as an "MDL” in which discovery and pretrial issues are consolidated. Some states such as New Jersey and California have statutes allowing for consolidation of mass tort cases filed in State Courts.

As attorneys representing the injured and disabled, it is important to keep abreast of the various mass tort cases that involve pharmaceutical drugs and/or medical devices that our clients may have been given during the course of their medical treatment for the accident. For example, if someone breaks a hip or knee in an accident and requires a hip or knee replacement surgery, could there be a potential cause of action related to the prosthetic hip or knee used in the surgery? There are active MDL Proceedings involving design defects in prosthetic hips manufactured by Biomet and DePuy. Another example is if an attorney represents a client in a Social Security Disability case, and they suffer from diabetes, there have been mass tort MDL Proceedings involving life threatening injuries from diabetes drugs such as lnvokana causing ketoacidosis, Januvia causing Pancreatic Cancer and Aetas causing bladder cancer. Once a potential mass tort case is identified, it is a good idea to get the client's permission to refer the potential matter out to a law firm that handles that particular mass tort. There is not only the potential that your client could receive additional compensation, but the likelihood that the referring attorney could share the attorney fee.7

Lawyers representing clients injured in car crashes need to be on the lookout for mass tort product liability claims. A great example of this involves Takata Airbags. Many Airbags manufactured by Japan based Takata are defective because they shoot metal shrapnel at the driver or passenger. If your client received facial lacerations or other serious injuries as a result of an airbag deployment, it is a good idea to preserve the relevant evidence and refer the potential airbag claim to a mass tort or product liability lawyer.

(ix) Medical Malpractice Claims Within Car Crash and Personal Injury Claims

If your client receives inadequate medical care to treat accident-related injuries, then there may be a medical malpractice case against the treating medical providers in addition to the case for which the client initially came to you. For example, if an individual is injured in a car crash and receives soft tissue injuries to the neck, but then goes to a chiropractor who improperly manipulates the neck causing a herniated disc, then in addition to the car accident claim, a malpractice claim should be considered against the chiropractor. If a client slips and falls breaking a leg, and then goes to the hospital for surgery but the surgeon operates on the wrong leg, then a medical malpractice claim in addition to the premises liability claim should be considered.

In conclusion, when representing someone with significant injuries, don't move forward with blinders on! Always be sure to consider the 9 categories of potential claims listed above.

CHECKLIST of Potential Claims to Consider:

  • Third Party Tort Claim
  • Product Liability Claim
  • First Party Claim
  • Workman's Compensation Claim
  • Social Security Disability Claim
  • Private Disability Claim
  • Life Insurance Claim
  • Mass Tort Claim
  • Medical Malpractice Claims Within Car Crash and Personal Injury Claims

Biography

Kevin I. Goldberg was the 2009-2010 President of the Maryland Association for Justice. He graduated Magna Cum Laude from Catholic University Columbus School of Law where he was an Editor for the Law Review. Mr. Goldberg is a Partner at Goldberg & Finnegan, LLC which is located in Silver Spring, Maryland. His practice areas include personal injury, product liability, car accidents, trucking litigation and mass torts.


1See Montgomery County v. Valk Mfg. Co.. 562 A.2d 1246 (MD 1989) (while contributory negligence bars direc t negligence claims. the defense does not bar strict liability claims).

2The statutory provisions in the Maryland Code regarding PIP Coverage are located at MD Code, Insurance §19-505 through § 19·508. In a nutshell though, PIP Cover age is required on nearly all auto policies sold on Maryland in the amount of at least $2,500.00 and it is no-fault coverage. it covers medical expenses, lost wages; The statutory provisions in the Maryland Code regarding Uninsured Motorist Coverage are located at MD Code, Insurance §19·509.

3See MD Code, Labor and Employment § 9·704, but note that failure to give timely notice within 60 days is not always fatal to a workman's compensation claim. The Workman's Compensation Commission can excuse failure to give notice for nearly any justifiable reason

4See MD Code, Labor and Employment § 9·709, but note that the Workman's Compensation Commission can waive the 60·day requirement for nearly any justifiable reason.

5MD Code, Labor and Employment § 9-704 9·709 provides that “…if a covered employee fails to file a claim within 2 years after the date of the accidental personal injury, the claim is completely barred.”

6MD Code, Labor and Employment § 9-710

7Fee sharing must be done in compliance with the applicable Rules of Professional Conduct. See Maryland Rule 1.5 (e) and Comment 7 which statutes “Paragraph (e) permits the lawyers to divide a fee on either the basis of the proportion of services they render or by agreement between the participating lawyers if all assume responsibility for the representation as a while and the client agrees to the joint representation, which is confirmed in writing.

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