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AUTO & GENERAL LIABILITY

Auto Accident Schemes | Auto Physical Damage Fraud | Medical Fruad/Claim Inflation |
Lost Earnings Fraud | Slip & Fall / Food & Products | Contributory Negligence/Comparative Fault |
Jury Instructions for Maryland

Indicators of Automobile Accident Schemes

  1. Either no police report or an over-the-counter report for an accident resulting in
           multiple injuries and/or extensive physical damage.
  2. Accident occurred shortly after one or more of the vehicles were purchased or
           registered, or after the addition of comprehensive and collision coverage to the policy.
  3. Insured has a history of accidents within a short period of time on one policy.
           Index returns indicate an active claim history.
  4. Insured has no record of prior insurance coverage although damaged vehicle was
           purchased much earlier than inception of policy and date of loss.
  5. Expensive, late model automobile was recently purchased with cash (no lienholder).
  6. Attorney's lien or representation letter is dated the day of the accident or soon after.

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Indicators of Auto Physical Damage Fraud

  1. Serious accident with expensive physical damage claim but only minor, subjectively
           diagnosed injuries, with little or no medical treatment.
  2. Despite expensive damage claims, the claimant vehicle remains drivable. Often,
           there are no towing charges for removing vehicle from the scene of the accident.
  3. Claimant vehicle was struck by a rental vehicle soon after the rental had occurred.
  4. Claimant vehicle is not to be repaired locally, but driven or shipped out of state for repair.
  5. All vehicles in a reported accident are taken to the same body shop.
  6. Claimant vehicles are not readily available for independent appraisal.
  7. Reported accident occurred on private property near residence of those involved.

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Indicators of Medical Fraud/Claim Inflation

  1. Three or more occupants in the claimant or "struck vehicle"; all of them report
            similar injuries.
  2. All injuries are subjectively diagnosed, such as headaches, muscle spasms,
           traumas, and others.
  3. Medical claims are extensive, but collision is minor with little physical damage to vehicles.
  4. All of the claimants submit medical bills from the same doctor or medical facility.
  5. Medical bills submitted are photocopies of originals.
  6. Summary medical bills are submitted without dates and descriptions of office visits
           and treatments, or treatment extends for a lengthy period without any interim bills.
  7. Vehicle driven by claimant is an old "clunker" with minimal coverage.
  8. Insured, even though legally liable for accident, is adamant that claimants were
           responsible for accident, indicating that the insured may have been "targeted" by
           the claimants.
  9. Claimants retain legal representation immediately after the accident is reported.
  10. Minor accident produces major medical costs, lost wages and unusually expensive
           demands for pain and suffering.
  11. Past experience demonstrates that the physician's bill and report, regardless of
           the varying accident circumstances, is always the same.
  12. Treatment prescribed for the various injuries resulting from differing accidents is
           always the same in terms of duration and type of therapy.
  13. Medical bills indicate routine treatment being provided on Sundays or holidays.
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Indicators of Lost Earnings Fraud

  1. Employment information is for an unknown business, often with a post office box
           for address, or a street address in a residential area.
  2. Business telephone number is connected to an answering machine or answering service.
  3. Lost eamings statement is handwritten or typed on blank paper, not business letterhead.
  4. Claimant started employment shortly before a~cident occurred, or is self-employed.
  5. One or more elements of claim is questionable: e.g. length of absence, rate of pay,
           income incompatible with claimant's residence.
  6. Efforts to verify lost wage statement with employer raise doubts about employer's
           legitimacy or about the actual employment of the claimant.

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Slip & Fall and Food/Products Liability

  1. Presence of an overly enthusiastic witness at the scene of the incident.
  2. No supporting evidence of foreign or contaminated substance; claimant threw food out
           and has only the can, box or wrapper.
           Copyright 1992 National Insurance Crime Bureau. All rights reserved.

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Contributory Negligence/Comparative Fault Chart

Comparative Fault Systems In All 51 Jurisdictions
Matthiesen, Wickert & Lehrer, S.C. has compiled a list of the various laws in every state dealing with whether the state is a contributory negligence state (bars recovery with only 1% of fault by the plaintiff) or a comparative negligence state (recovery by plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff, and whether the state is a pure comparative or modified comparative state). This list is useful in evaluating subrogation potential where there may be contributory negligence on the part of the insured. Please bear in mind that there are many exceptions within each state with regard to whether the particular fault allocation scheme applied in a particular state is applicable to a particular cause of action. Some states limit the application of the scheme to negligence claims, and avoid applying it to products liability cases. Other states have effective dates which may come into play. Still other states have rules which may modify the application of the particular scheme referenced. The list below should be used as a guideline only, and questions regarding specific fact situations should be directed to one of our subrogation lawyers.

Comparative fault systems fall into one of three basic types: contributory, pure, and modified negligence. The comparative fault standards for the 51 jurisdictions breakdown as follows:

Only five (5) states recognize the pure contributory negligence rule, which says that a damaged party cannot recover any damages if he is even one (1) percent at fault.

JURISDICTION

RULE

AUTHORITY

Alabama

Pure Contributory Negligence

Alabama Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968).

District of Columbia

Pure Contributory Negligence

Wingfield v. People's Drug Store, 379 A.2d 685 (D.C. 1994).

Maryland

Pure Contributory Negligence

Board of County Comm'r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997).

North Carolina

Pure Contributory Negligence

N.C.G.S.A § 99B-4(3).

Virginia

Pure Contributory Negligence

Baskett v. Banks, 45 S.E.2d 173 (Va. 1947).

 

Thirteen (13) states recognize the pure comparative fault rule, which allows a damaged party to recover even if it is 99 percent at fault, although the recovery is reduced by the damaged party's degree of fault.

 

JURISDICTION

RULE

AUTHORITY

Alaska

Pure Comparative Fault

Alaska Stat. §§ 09.17.060 & 09.17.080.

Arizona

Pure Comparative Fault

A.R.S. § 12-2505.

California

Pure Comparative Fault

Liv v. Yellow Cab, 119 Cal. Rptr. 858 (1975).

Florida

Pure Comparative Fault

F.S.A. § 768.81(2).

Kentucky

Pure Comparative Fault

K.R.S. § 411.182.

Louisiana

Pure Comparative Fault

L.S.A.- C.C. Art. 2323.

Mississippi

Pure Comparative Fault

M.C.A. § 11-7-15.

Missouri

Pure Comparative Fault

Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983).

New Mexico

Pure Comparative Fault

Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981).

New York

Pure Comparative Fault

N.Y. C.P.L.R. § 1411.

Rhode Island

Pure Comparative Fault

R.I.G.L. § 9-20-4.

South Dakota

Pure Comparative Fault

S.D.C.L. § 20-9-2 (complete bar of recovery for anything other than slight negligence).

Washington

Pure Comparative Fault

R.C.W.A. §§ 4.22.005-015.

Of the approximate 32 states that recognize the modified comparative fault standard, there are two competing schools of thought.

Twelve (12) states follow the 50 percent bar rule, meaning a damaged party cannot recover if he is 50 percent or more at fault, but if he is 49 percent or less at fault, he can recover, although his recovery is reduced by his degree of fault.

JURISDICTION

RULE

AUTHORITY

Arkansas

Modified Comparative Fault -- 50 Percent Bar

A.C.A. § 16-64-122.

Colorado

Modified Comparative Fault -- 50 Percent Bar

C.R.S. § 13-21-111.

Georgia

Modified Comparative Fault -- 50 Percent Bar

O.C.G.A. § 51-11-7.

Idaho

Modified Comparative Fault -- 50 Percent Bar

Idaho Code § 6-801.

Kansas

Modified Comparative Fault -- 50 Percent Bar

K.S.A. § 60-258a(a).

Maine

Modified Comparative Fault -- 50 Percent Bar

14 M.R.S.A. § 156.

Nebraska

Modified Comparative Fault -- 50 Percent Bar

Neb. Rev. Stat. § 25-21, 185.11.

North Dakota

Modified Comparative Fault -- 50 Percent Bar

N.D.C.C. § 32-03.2-02.

Oklahoma

Modified Comparative Fault -- 50 Percent Bar

Okla. Stat. Ann. Tit. 23, § 13.

Tennessee

Modified Comparative Fault -- 50 Percent Bar

McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992).

Utah

Modified Comparative Fault -- 50 Percent Bar

U.C.A. §§ 78-27-37 & 78-27-38.

West Virginia

Modified Comparative Fault -- 50 Percent Bar

Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W. Va. 1979).

Twenty-one (21) states follow the 51 percent bar rule, under which a damaged party cannot recover if he is 51 percent or more at fault, but can recover if he is 50 percent or less at fault. Again, the recovery would be reduced by degree of fault.

JURISDICTION

RULE

AUTHORITY

Connecticut

Modified Comparative Fault -- 51 Percent Bar

C.G.S.A. § 52-572(h).

Delaware

Modified Comparative Fault -- 51 Percent Bar

1 Del. C. § 8132.

Hawaii

Modified Comparative Fault -- 51 Percent Bar

Haw. Rev. Stat. § 663-31.

Illinois

Modified Comparative Fault -- 51 Percent Bar

735 I.L.C.S. § 5/2-1116.

Indiana

Modified Comparative Fault -- 51 Percent Bar

I.C. § 34-51-2-6.

Iowa

Modified Comparative Fault -- 51 Percent Bar

I.C.A. § 668.3(1)(b).

Massachusetts

Modified Comparative Fault -- 51 Percent Bar

M.G.L.A. 231 § 85.

Michigan

Modified Comparative Fault -- 51 Percent Bar

M.C.L.A. § 600.2959 (at 51% fault, plaintiff’s economic damages reduced and non-economic damages are barred).

Minnesota

Modified Comparative Fault -- 51 Percent Bar

M.S.A. § 604.01(1).

Montana

Modified Comparative Fault -- 51 Percent Bar

Mont. Stat. § 27-1-702.

Nevada

Modified Comparative Fault -- 51 Percent Bar

N.R.S. § 41-141.

New Hampshire

Modified Comparative Fault -- 51 Percent Bar

N.H. Rev. Stat. Ann. § 507:7(d).

New Jersey

Modified Comparative Fault -- 51 Percent Bar

N.J.S.A. § 2A:15-5.1.

Ohio

Modified Comparative Fault -- 51 Percent Bar

Ohio Rev. Code Ann. § 2315.19(B)(4).

Oregon

Modified Comparative Fault -- 51 Percent Bar

O.R.S. § 18.470.

Pennsylvania

Modified Comparative Fault -- 51 Percent Bar

42 P.S. § 7102.

South Carolina

Modified Comparative Fault -- 51 Percent Bar

Nelson v. Concrete Supply, 399 S.E.2d 783 (S.C. 1991).

Texas

Modified Comparative Fault -- 51 Percent Bar

Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001-33.017.

Vermont

Modified Comparative Fault -- 51 Percent Bar

Vt. Stat. Ann. Tit. 12, § 1036.

Wisconsin

Modified Comparative Fault -- 51 Percent Bar

Wis. Stat. § 895.045(1).

Wyoming

Modified Comparative Fault -- 51 Percent Bar

Wyo. Stat. § 1-1-109(b).


In a contributory negligence jurisdiction, if the jury finds Betty was the least bit negligent and contributed to the accident, then Betty would recover nothing. Therefore, even if Betty is only 5% at fault and John is 95% at fault, Betty recovers $0.

In a comparative negligence jurisdiction, if a jury finds that Betty is 5% at fault and John is 95% at fault, Betty would still be able to recover, but her $10,000 in damages would be reduced by her 5% of fault, so that Betty would recover only $9,500.
Comparative negligence differs among states. For example, if Betty is found to be 50% at fault, and John 50% at fault, some comparative negligence states would still allow Betty to recover $5,000 (50% of her damages), while other states would prevent her from recovering at all because she is equally at fault with the other driver.

Still other states draw the line at 51%, following the principle that a plaintiff who is MORE negligent than a defendant should not be able to recover anything. For example, in Colorado, Betty would recover $5,000 if she is 50% negligent, but if she is 51% negligent, she would recover nothing.

Finally, there are 13 states which have "pure comparative negligence" law. This means that a jury could conclude that Betty is 90% at fault for the accident, and John was only 10% at fault, but Betty would still be able to recover $1,000 (her damages reduced by 90%).

http://www.mwl-law.com/PracticeAreas/Contributory-Neglegence.asp

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Examples of Jury Instructions for Maryland


MPJI 19:1: Definition
Negligence is doing something that a persori using ordinary care would not do, or not doing something that a person using ordinary care would do. Ordinary care means that caution, attention or skill a reasonable person would use under similar circumstances..

MPJI 19:2: Volunteer-Duty

One who volunteers to act, to assist, or aid another niust e*ercise the same degree of due care a reasonable pCrson would exercise under the same or similar circumstances.

MPJI 19:3: Foreseeable Circumstances

A reasonable person changes conduct according to the circumstances and the danger that known or should be known; Therefore, if the foreseeable danger increases, a reason ableperson acts more carefully.

MPJI 19:4: Liability for Negligent Hiring

An employer has a duty to refrain from employing any person who poses an unreasonable risk to other persons who would foreseeably come into contact with such employee because of the employment relationship.

A person who breaches this duty is responsible for any injuries or damages caused by the conduct or actioris of any such employee if such injuries or damages to the plaintiff came about as a result of special opportunities or knowledge provided to such employee as a consequence of employment relationship.

MPJI 19:5: Employer-Employee Relationship - Wrongful <R> Discharge

In order to recover for wrongful. discharge the plaintiff must show:
(i) an employment contract of any duration including an at-will employrnent contract,
(ii) terminated by the employer
and the discharge was contrary to the clear mandate of public policy.

MPJI 19:6: Negligent Misrepresentation

To recover damages for negligent misrepresentation, it must be shown that:
(i) the defendant misrepresented a present or past material fact;
(ii) the defendant, owing the plaintiff a duty of care, was negligent in making the misrepresentation;
(iii) the defendant made the misrepresentation intending that the plaintiff would act in reliance on it;
(iv) the defendant knew the plaintiff probably would rely on the misrepresentation, which if false would cause injury 6r loss to the plaintiff.
(v) the plaintiff relied on the misrepresentation;
(vi) the plaintiff's reliance was justified; and
(vii) the plaintiff suffered damages as a result of the plaintiff's reliance on the misrepresentation

MPJI 19:7: Violation of Statute

The violation of a statute, which is a cause of plaintiff's injuries or damages, is evidence of negligence.

MPJI 19:8: RES IPSA Loquitur

Ordinarily, the fact that an accident happened does not mean that it was caused by negligence. However, if each of the following circumstances is more probable than not, you may conclude that there was negligence:

First, the event would not ordinarily happen without negligence;

Second, the cause of the event was within the defendant's exclusive control;

Third, no action by anyone else, including the plaintiff, was a cause of the event.

Should you find that it was more probable than not that the defendant was negligent, the defendant is then called upon for a satisfactory explanation and may explain to your satisfaction that there was no negligence or the defendant's part which was a cause of the event.

If you are not satisfied with the defendant's explaination and conclude the defendant's negligence caused the plaintiff's injuries, your verdict should be for the plaintiff.

MPJI 19:9: No Imputation: Parent to Minor

A minor can not be held responsible for the negligence of the minor S parent, guardian 6r custodian.

MPJI 19:10: Proximate and Concurring Causes

To recover damages or to be barred from recovery, the negligence must be a cause of an injury. [There may be more than one cause of an injury, that is, several negligent acts may work together. Each person whose negligent act is a cause of an injury is responsible.]

MP3I 19:11: Contributory Negligence - Generally

A plaintiff cannot recover if the plaintiff's negligence is a cause of the injury.
The defendant has the burden of proving by a preponderance of the evidence that the plaintiff's negligence was a cause of the plaintiff's injury.

MPJI 19:12: Contributory Negligence - Minors

A child is not to be held to the same standard or.degree of care that an adult would have used. The child is to. be held to that standard or degree of care which ordinary prudent children of similar age, intelligence, experience and development would have used under the same circumstances.

MPJI 19:13: Assumption of Risk

A person who, with full knowledge and understanding of an existing danger, voluntarily
chooses to expose himself or herself to that danger, cannot recover for injury resulting from that danger.

MPJI 19:14: Last Clear Chance

A plaintiff who is contributorily negligent may nevertheless recover if the plaintiff is in a situation of helpless peril and thereafter the defendant had a fresh opportunity of which defendant was aware to avoid injury to the plaintiff and failed to do so.

MPJI 19:15: Acts in

[The Instruction MPJI 18:3, MOTOR VEHICLES- ACTS IN EMERGENCY, can be adapted to negligence suits generally.]

MPJI 18:1: Standard of Care

The driver of a motor vehicle must use reasonable care. Reasonable care is that degree of caution and attention which a person of ordinary skill and judgment would use under similar circumstances. What constitutes reasonable care depends upon the circumstances of a particular case. The law does not attempt to define in detail what constitutes reasonable care under all possible circumstances.

MPJI 18:2: Boulevard Rule

Under Maryland law, certain roads or highways are given the status of a favored highway. A motor vehicle, on a favored highway is the favored vehicle, and the motor vehicle on the unfavored highway is the unfavored. motor vehicle. The driyer of the unfavored motor vehicle must stop before entering upon the highway and yield the right-of-way to the favored motor vehicle, provided the favored driver is operating lawfully. The favored driver may assume that the unfavored driver will stop and yield the right-of-way.

MPJI 18:3: Acts in Emergencies

When the driver of a motor vehicle is faced with a sudden and real emergency, which was not created by the driver 95 own conduct, the driver must exercise reasonable care for his or her own safety and for the safety of. others. The reasonableness of the driver's actidns must be measured by the standard of the acts of other drivers of ordlirary skill and judgment faced with the same situation. The driver is not to be held to the same coolness or accuracy of judgment which is required of a person who has an ample opportunity fully to exercise personal judgment.

MPJI 18:4: Violation of Statute

The violation of a statute, which is a cause of the plaintiff's injuries or damages, is evidence of negligence.

MPJI 18:5: Negligent Entrustment

A person is negligent who entrusts the use of a motor vehicle to another person he or she knows, or should know, is likely to be reckless, incompetent or dangerous.

MPJI 18:6: Defective Vehicle

It is the duty of the operator and owner of a motor vehicle to see that it is in a reasonably safe condition before it is operated upon a public highway. A person is negligent who
knows or should know of any unsafe condition in a vehicle and who drives or permits another person to drive the vehicle.

The operator and owner have a duty to properly maintain: and inspect the vehicle. A defective condition which is the cause of the accident is evidence of negligence of an operator and owner who has failed to properly maintain. and inspect the vehicle. However, the operator or owner may defend by showing proper inspection and maintenance and a sudden and unexpected failure without warning. Proper inspection means an inspection which shows that the vehicle or the alleged defective part of the vehicle was in adequate working condition prior to the failure, provided that the operator and owner did not have any reason to suspect the vehicle or the alleged defective part of the vehicle may be tikely to fail in the course of the normal operation of the vehicle.

MPJI 18:7: Brake Failure

The operator and owner of a motor vehicle are required to excrcise reasonable care to properly maintain and inspect the brakes. The failure of the brakes t6 operate.properly which is the cause of an accident is evidence of negligence of the operator and owner.
However, the operator and owner ma defend by showing proper inspection and maintenance and sudden and unexpected failure without warning. The duty of an operator and owner to inspect a vehicle for defective brakes may be accomplished by operating the brakes and finding them in adequate working condition prior to the failure, provided that the operator and owner did not have reason to suspect that the brakes may be likely to fail in the course of the normal operation of the vehicle.

MPJI 18:8 Sudden Incapacity

A person has the duty to take reasonable actions to be sure that he or she can safely operate a motor vehicle.

However, a person may defend by showing that there was a sudden and unforeseen incapacity that rendered him or her unable to avoid or prevent the accident causing the injury. Unforeseen incapacity is one that a reasonable person would not have any reason to anticipate.

MPJI 18:9 Unavoidable Accident

An unavoidable accident is an inevitable occurrence which is not to be foreseen and prevented by vigilance, care and attention and not occasioned by or contributed to in any manner by act or omission or the party claiming the accident was unavoidable.

MPJI 8:1: Common Carrier - Definition

A common carrier is anyone who engages in public transportation of persons or property for hire.

MPJI 8:2: Passenger Status

A passenger is one who travels in a (insert type ot conveyance) as a result of an express or implied contract with a carrier.

The relationship of carrier and passenger is not confined to the journey itself. It includes not only the duty to transport the passenger safely from one place to another but also, insofar as it is reasonably within the carrier's ability to do so, to provide safe ingress and egress.

The duty begins when a prospective passenger starts to enter the conveyance or the carrier's station, platform, waiting room, or other facility maintained by the carrier for the passage and convenience of its passengers, and it ends when the passenger has safely exited the conveyance or the carrier's station, platform, or facility.

MPJI 8:3: Common Carrier's Duty Generally
A common carrier is required to use the utmost degree of care, skill and diligence in everything that concerns its passengers' safety. However; the carrier is not an insurer of the safety of its passengers.


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