In one of my former cases, a Defendant mangled my client’s finger by closing it in an electric car window. According to my client, the Defendant neither warned him that she was about to close the window nor did she give him enough time to remove his finger from the window opening (the window had already been mostly closed). As a result, his finger needed surgery and was permanently mangled.   Since no one else saw what happened, if the case went to trial, the jury would have to decide between our client’s and the Defendant’s versions of what took place. The Defendant’s insurance company claimed that it was our client’s fault and refused to pay him any money. When I took the Defendant’s “deposition”[1] she either disagreed with our client on key points or claimed not to remember them.

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Let’s say you are involved in a serious collision in the District of Columbia. You were driving through an intersection on a green light and a driver from your right ran a red light and t-boned your car. Fortunately, there is an independent witness, the driver of the car behind you, who saw you enter the intersection on a green light. You suffered multiple injuries, most of which healed over more than a year, but one of which, significant neck pain, is permanent. You have a DC auto insurance policy. It provides $100,000 of underinsured motorist (UIM) coverage. The person who ran the red light (the “runner”) has a minimum DC auto policy, which provides $25,000 of liability coverage. You have over $50,000 in medical bills and a permanent injury, so $25,000 won’t be enough money for your claim. Your lawyer contacts the red light runner’s insurance company and demands the $25,000 policy limit. That company investigates, talks to the witness, and agrees to pay its $25,000 in coverage.

stock-photo-14434276-close-up-of-insurance-fileYour lawyer then writes your insurance company, tells it that the runner’s insurance company has accepted responsibility, and asks for permission to accept the $25,000 offer. He also asks your insurance company to accept responsibility under your insurance policy (which is a contract) and to pay its policy limit.[i]   Your insurance company refuses to allow you to accept the $25,000 offer and refuses to offer you any money.  Continue reading

crash-car-748825-mFor the final installment of this thread of blog posts, we will use the same facts from Part 1, but they will take place in Virginia.  To review the key facts, a customer is served drinks at a bar long after he is obviously intoxicated and has told the bartender that he plans to drive home.  On the way home the customer crashes head-on into a small car containing a father, which ends the father’s life.  The lawyer for the family sues the customer for compensatory damages and punitive damages.  The customer’s insurance company retains a lawyer to defend him.  The defense lawyer files a motion to dismiss, called a “demurrer” in Virginia,  to knock out the punitive damages count in the lawsuit.  What result?  The Court will deny it.

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crash-car-1-748020-mOkay, so the injury lawyer then files suit against the D.C. bar for serving the drunk driver.  The D.C. bar’s defense lawyer files a motion to dismiss the lawsuit.  Would the DC Superior Court (the local court) or the United States District Court for the District of Columbia (the federal court)[i] dismiss the lawsuit like a Maryland judge?  Answer:  No.  D.C. law, unlike Maryland law, does have dram shop liability.  The District of Columbia Court of Appeals dealt with this issue in Rong Yao Zhou v. Jennifer Mall Restaurant, Inc.[ii]  In Zhou, a restaurant’s employees had served alcohol to a customer after he either was, or appeared to be, intoxicated.  Sometime later he then left the restaurant and drove into two people, seriously injuring them.

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urban-accident-27210-mOkay, so what if the same facts took place in the District of Columbia?  First, could the mother and children get punitive damages against the customer of the bar?  Answer:  Probably not.  Punitive damages have not generally been available in DC in cases involving mere drunken driving. Giddings v. Zellan, 82 U.S. App. D.C. 92, 160 F.2d 585, cert. denied, 332 U.S. 759 (1947).  Twenty years later, the Court of Appeals wrote:  “It is our view that Giddings, despite some general language in the opinion, holds only that Maryland law does not permit punitive damages for injuries inflicted by negligent operation of a motor vehicle.”  Safeway Trails, Inc. v. Schmidt, 225 A.2d 317, 320 (D.C., 1967).

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car-accident-1-774604-mSo next, the lawyer gets a copy of the police report and learns that the customer was grossly intoxicated at the time of the crash.  He thinks, I’m going to sue the customer, who survived with relatively minor injuries, for compensatory damages[i] and punitive damages.  He files suit for punitive damages against the customer for driving while intoxicated.  The customer’s insurance company retains a lawyer to defend him.  The defense lawyer files a motion to dismiss the punitive damages count in the lawsuit.  The court grants the motion and dismisses the punitive damages count.  Why?  Because under Maryland law you cannot generally get punitive damages against a drunk driver.[ii]  In deciding this, Maryland’s highest court, the Court of Appeals, held that in order to maintain an award of punitive damages, the plaintiff must prove that the defendant had “actual malice,” meaning that he intended the harm that he caused.  Under the facts in our example, while the customer intended to imbibe his 6 drinks, he did not intend to kill the driver of the Toyota, so there cannot be an award against him of punitive damages under Maryland law.

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crash-car-825017-mI sometimes find it interesting that the same legal subject can be handled in strikingly different ways by Maryland, District of Columbia and Virginia courts.  For this post, I will explore theories of liability for the actions of drunk drivers and those who serve them drinks in Maryland.  Later posts will explore this area of tort law in the District and Virginia.

First, a few definitions are in order.  “Compensatory damages” are those designed to compensate a plaintiff for his injuries, medical expenses, lost time from work, and harms and losses resulting from being injured by another person’s carelessness.  “Punitive damages” are designed to punish the wrongdoer and deter future misconduct.  A “dram” is a measurement of liquid equal to one-eighth of a liquid once.  A “dram shop” is an archaic term for a bar or tavern.  “Dram shop liability” refers to “[c]ivil liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer.”[i]

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