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Underinsured/Uninsured drivers and the concept of Contributory Negligence
*Please be advised that effective October 1, 2017, the law, as it is explained in our blog post below will change. Prior law was that if you got into a car accident that was not your fault, and exhausted the other party’s policy limits, you would turn to your own policy for underinsured motorist (UIM) coverage. You could only recover UIM benefits to the extent that your coverage exceeded the other driver’s coverage; in other words: you could not “stack” the coverage. However, the new legislation taking effect on October 1, 2017 means these policies can stack. For example, under the old law, $50k in primary coverage + $50k in UIM coverage = $50k; but with the new law, $50k primary + $50k UIM = $100k
This edition of our blog addresses two issues related to car accidents: Underinsured/Uninsured drivers and Maryland’s policy of Contributory Negligence.
Continuing the scenario from our last blog post: Someone wasn’t paying attention, they ran a red light and your bad luck put you in the intersection right in their path. Your family was in the car with you. You find yourself injured and at the hospital. You’re worried, hurt, maybe medicated – yet there are lots of people asking lots of questions that need answers. The hospital wants billing information, the police want a statement and insurance adjusters want details. There are lots of forms. It’s normal to be stressed about all this but then, even while lying in the hospital, everyone eventually has the same questions – “How am I going to pay for all of this? What if I miss work? Will the hospital wait to get paid until other driver’s insurance company pays me?” (The real world answer is no, they are more likely to send you to collection possibly damaging your credit). “How’s the car going to get fixed? Do I get a rental while it’s in the shop?” These are the “typical” questions people have and unless you are in the insurance industry, you probably can’t answer them. So your next question is… “Do I need a lawyer?”
This blog edition adds two more important questions which are fundamental to your claim: “Does the other driver have any or adequate car insurance?” and “Was I even partially at fault?”
Uninsured and Underinsured Motorist Coverage
If the answer to the first question is “No” then you may be eligible to recover under coverage in your own auto insurance policy. In Maryland, all auto policies are required to carry a minimum amount of uninsured motorist (UM) or underinsured motorist (UIM) coverage. UM/UIM is insurance that provides coverage for people who have been in an accident with an at-fault driver who has no auto insurance or a policy with limits that are too low to cover your damages, or in the case of a phantom driver or hit and run collision.
The only catch is that in order to provide benefits your UM/UIM coverage has to be greater than the coverage of the driver that hit you. It’s most easily illustrated by these scenarios:
- The at-fault driver has no car insurance and you have $30,000 in UM coverage – there are up to $30,000 in benefits available to you.
- The at-fault driver has $30,000 in coverage and your UIM policy has $30,000 in coverage – no UIM benefits are available.
- The at at-fault driver has $30,000 in coverage and your UIM policy has $50,000 in coverage – there are $20,000 in UIM benefits available to you.
It’s also important to note that there may be time limits to make your UM/UIM claims. So it’s important to get advice as quickly as possible after learning the other driver has too little insurance. Contacting a Personal Injury Attorney who has experience handling complex insurance matters will provided you with the best chance for a positive outcome.
Contributory Negligence – Why Maryland is one of the most difficult jurisdictions for Plaintiffs
Maryland is one of only five “contributory negligence” jurisdictions in the country. Under this doctrine if you contributed to your accident in any way then you have no right to make a claim for damages or injuries against the other driver or the UM/UIM coverage in your own policy. This is true even if the other driver is 99 percent at fault. This is a tremendous advantage for insurance carriers and provides them a defense in Maryland that they wouldn’t have in most other jurisdictions.
The cause of the accident is often in dispute in these cases. Many factors come into play – driver negligence, traffic conditions, weather, distractions, mechanical defects and vehicle maintenance are typical considerations. It’s rare that all of information about these factors is known to both sides. The attorneys who represent the insurance companies are often able to raise the prospect that you contributed to the accident by filling in the blanks with their “theory” of how the accident occurred. It’s important that you discuss these factors with your lawyer in detail so that he or she is best prepared to deal with the defense’s theory of the case.
The personal injury attorneys at Ferrante & Dill have years of experience. In the past Partner Nick Ferrante has worked for many of the major insurance companies and represented well known national retailers and trucking companies defending these types of claims. But now we work exclusively on the side of people who are injured – helping them to get compensated for the losses they have incurred as a result of someone else’s negligence. If you or someone you care about has been hurt please call the Personal Injury Attorneys at Ferrante & Dill as soon as possible to set up your free initial consultation. You can reach us by phone at (410) 535-6100, or via email at info@ferrantedill.com. To learn more about our firm visit us on the web at www.ferrantedill.com
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Do I Need a Personal Injury Attorney?
The scenario is this: Someone wasn’t paying attention, they ran a red light and your bad luck put you in the intersection right in their path. Your family was in the car with you. You find yourself injured and at the hospital. You’re worried, hurt, maybe medicated – yet there are lots of people asking lots of questions that need answers. The hospital wants billing information, the police want a statement and insurance adjusters want details. There are lots of forms. It’s normal to be stressed about all this but then, even while lying in the hospital, everyone eventually has the same questions – “How am I going to pay for all of this? What if I miss work? Will the hospital wait to get paid until other driver’s insurance company pays me?” (The real world answer is no, they will likely send you to collection possibly damaging your credit). “How’s the car going to get fixed? Do I get a rental while it’s in the shop?” These are the “typical” questions people have and unless you are in the insurance industry, you probably can’t answer them. So your next question is… “Do I need a lawyer?”
In most injury cases the answer is “Yes” especially if you have serious injuries which require expensive treatment and missed time from work. Sometimes people are hesitant to hire a lawyer if they’ve sustained only minor injuries. Still, setting up a consultation with a Personal Injury Attorney isn’t a bad idea. For one, initial consultations are usually free and it’s probably worth your time just to get answers to the “typical” questions discussed in the previous paragraph. But sometimes injuries turn out to be more serious than you or the emergency room doctor originally thought. They initially seemed “treatable” but ended up being resistant to therapy and eventually required surgery. Sometimes healing doesn’t happen at the expected rate and you aren’t back to work as fast as you anticipated, or maybe you are back but less productive than your pre-accident self. In any of those circumstances, if you accepted a quick settlement from the other driver’s insurance company before consulting an attorney, you are likely out of luck. Most personal injury attorneys will advise you to wait until you and your doctor know the full extent of your injuries and let your treatment run its fullest possible course before considering a settlement offer.
In the timeline of a typical claim, during the period while you are being treated two contentious issues usually arise – “How much am I going to get paid for my property damage?” and “Who is going to pay for my ongoing medical care?” If you have to fight with the insurance company about either of those issues then you would probably benefit from having a lawyer. Remember that the insurance adjuster on the other end of the phone is a trained professional, sometimes with multiple industry certifications, who has likely handled hundreds, if not thousands of claims. This is your first one. Your goal is get what is yours and be done with the headaches as quickly as you can. The adjuster is not there to help you do that. The adjuster’s goal is to resolve the claim for as little money as possible. That adjuster is acting in the best interest of his or her employer whose only concern is the bottom line. They won’t go to bat for you and they won’t give you advice about how to maximize or expedite your claim. Only your lawyer can do that for you.
The problems described so far seem pretty obvious but one of the most difficult issues is one that people never see coming. “How do I handle the various claims for payment, damage and injuries under the different insurance policies?” The solution can be found in the answers to 2 questions: “Who pays for what?” and “Who needs to get paid back?” It’s called coordination of benefits and it can get complicated. Consider the policies that might play a role in your accident claim:
- The liability coverage in the other driver’s auto policy
- The Personal Injury Protection coverage in your auto policy
- The uninsured/underinsured motorist protection provisions of your auto policy
- Your health insurance policy
- Medicare
- Tri-Care
- Short term disability policies such as AFLAC
- Your employer’s worker’s compensation policy
It’s not unusual to see 3 or 4 of these policies come into play in a typical accident claim. They each may have different claim deadlines and their own sets of paperwork. If one pays out, and later decides that another should have paid instead, they may come after YOU for reimbursement, not the guy that hit you or the hospital that they paid for your care. Any attorney you interview should be asked whether they will handle the coordination of benefits as part of their representation. You should have a clear understanding as to whether or not it is a service covered by the fee you pay to the firm.
Speaking of fees, everyone knows that lawyers are expensive. In most personal injury cases fees should be less of a concern because they are usually handled on a contingency basis, meaning the law firm is paid a percentage of your settlement or verdict so the firm’s financial reward for representing you is tied to their performance. The better they do for you, the better it is for them. A reputable law firm will provide you with a written explanation of how their fees work at the beginning of their representation. It will explain the percentage the firm gets and how case expenses are handled. It should also say that they will not agree to any settlement without your consent.
The personal injury attorneys at Ferrante, Dill & Hisle have years of experience. In the past Partner Nick Ferrante has worked for many of the major insurance companies and represented well known national retailers and trucking companies defending these types of claims. But now we work exclusively on the side of people who are injured – helping them to get compensated for the losses they have incurred as a result of someone else’s negligence. If you or someone you care about has been hurt please call the Personal Injury Attorneys at Ferrante, Dill & Hisle as soon as possible to set up your free initial consultation. You can reach us by phone at (410) 535-6100, or via email at info@ferrantedill.com. To learn more about our firm visit us on the web at www.ferrantedill.com
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Child Support
Ask them, and almost every parent will tell you that raising a child (or multiple children) can be an expensive endeavor. In fact, according to the United States Department of Agriculture, the national average cost to raise a toddler is upwards of $16,000 annually. It’s no wonder when you consider all the things a parent might pay for in a child’s lifetime: food, clothing, housing, education, medical needs, sports and other activities, weddings…the list goes on, and on. Keeping up with such expenses in a two-parent household can be overwhelming, let alone if you are in a single parent household. And biological parents in Maryland have a legal obligation to support their children based on their financial ability to do so. Since the early 90’s, Maryland has had laws and guidelines in effect to calculate child support based on each parent’s gross income. Learning how child support works and how it’s awarded is an important step you should take if you are either in need of or find yourself in the position of having to pay child support.
When do the Courts become involved?
Child support is rarely an issue that the courts become involved in during a marriage or other committed relationship. However, they will get involved if parents divorce or stop living together with their children as a family. The courts will help decide how much the custodial parent should receive from the non-custodial parent on a monthly basis. The custodial parent is the one who primarily resides with the child; the non-custodial parent does not, though he or she may have certain visitation rights, which are determined in the custody agreement. Like custody, child support can be decided either by an agreement between the parents or by fighting it out in front of a judge. However even with an agreement a judge could order a different amount if it’s determined that the amount agreed upon is not in the child’s best interest.
How is the amount of child support determined?
All states have their own child support guidelines that are based on a goal of ensuring that children have the benefit of the same amount of financial resources that they would have if the family were still intact. First is either agreeing upon or having a court determine whether one parent has primary custody or if there will be a shared custody arrangement. The guidelines then take into consideration the total number of children in the household, the amount of time the child(ren) spend with each parent, daycare expenses, extraordinary medical expenses (such as when a child has a medical condition that generates more than the ordinary amount of expense), and the cost of health insurance for the child(ren) only. Provided the parents’ income falls within the guidelines, and based on the formula developed by the Maryland legislature, these values are plugged into a child support calculator which then determines how much each parent must contribute towards the support of the child resulting in an amount to be paid by one parent to the other.
A Child Support Order is then issued which outlines the court-ordered terms of the child support agreement. The order will outline a payment schedule for the non-custodial parent- including the amount and date each payment is to be made to the custodial parent. Child support is usually lower if the non-custodial parent retains custody of the child for at least 35% of the time. Child Support Orders are an enforceable Order of the Court; as such, any parent who is not paid child support according to the agreement can use the legal tools available to enforce the order (wage garnishments, wage assignments, contempt of court decrees, and property seizure). Child Support Orders are generally enforceable until the child turns 18, dies, or is emancipated (becomes independent of his or her parents’). However, Maryland law does require that child support continues even after the child turns 18 if that child is still enrolled in high school.
It is an often-stated myth that parents who receive child support have to provide an accounting to either the court or the paying parent of how the child support funds are used. This is not the case. Since the custodial parents are known to be incurring expenses for the day-to-day care of the children, such as ensuring there is a roof over their head, electric, food, clothing, etc. (as discussed in the first paragraph), the guidelines have already taken into consideration these expenses incurred by the custodial parent and the paying parent is deemed to be contributing to these expenses in addition to the support the non-custodial parent provides to the children while they are having their access with them as well.
As with any aspect of a situation that involves the custody or support of minor children, you should be sure that you have skilled and knowledgeable representation at your side. One of Ferrante and Dill’s founding partners, Jennifer Dill, has been recognized as one of the most distinguished Family Law attorneys in Southern Maryland. She has been selected by Super Lawyer’s Magazine as not only a “Super Lawyer” but one of the Top 50 Women Lawyers in Maryland. Call her today to set up a consultation! (410) 535-6100 or email us at info@ferrantedill.com.
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What Is Custody?
Celebrity custody battles often make headlines- the drama and fighting all highlighted and blown out of proportion in an effort to create entertainment out of someone else’s struggles. As the scenes of the melodramatic soap opera unfold in the weekly issues of People and Us magazines from week-to-week, those of us following along find ourselves cringing and praying we never find ourselves in such a situation. Celeb battles like Gossip Girls Kelly Rutherford’s battle with her ex-husband have us paranoid; convinced that custody battles are ugly, messy, and traumatic for the children involved. While they certainly can get that way, it’s important to understand that if you find yourself going through a divorce and you have children, your own custody battle won’t necessarily be as ugly as Ms. Rutherford’s. Her case is complicated by her celebrity and the fact that she is fighting her ex-husband, who lives in Monaco, from New York City. Having a general understanding of what custody actually means in Maryland is a good first step towards making it easier for everyone involved.
What is Custody?
Generally, custody is defined as the physical care, supervision, and legal responsibility of a child under the age of 18. While there are a number of custody arrangements that can result from a custody case, there are only types of actual “custody” in Maryland: physical and legal, with each type taking various forms.
What is Physical Custody?
Physical custody deals with the physical care and supervision of a child and addresses who the child will live with on a day-to-day basis and who will make decisions that come up during that time.
The following forms of physical custody arrangements exist in Maryland:
- Primary or Sole Physical Custody: The child lives with the “custodial” parent and an access schedule is general provided to the “non-custodial” parent. The custodial parent generally determines the activities of and who will care for the child on a day-to-day basis. The custodial parent’s address is generally used for school purposes.
- Shared Physical Custody is broken down into three categories:
- Partial Shared Physical Custody: the child has two residences, spending at least 35% of his/her time with one parent and the rest of the time with the other;
- Full Shared Physical Custody: the child has two residences, spending equal amounts of time with each parent; either on a weekly (switching once a week), split weekly (often 2 days during the week with each parent then rotating weekends schedule), or switching on a daily basis.
- Split Custody (of two or more children): this is when there are two (or more) children and each parent obtains full physical custody over at least one child. Some of the considerations that may cause this type of custody arrangement are the age of the children and each child’s preference.
What is Legal Custody?
Legal custody addresses which parent has the right to make decisions for the child’s education, religious training, discipline, and medical care. It is also the mechanism by which the parents have the right to obtain this type of information about their child.
The following forms of legal custody arrangements exist in Maryland:
- Joint Legal Custody: Each of the parents have the right to make legal decisions (such as authorizing medical care or educational services). This does not mean that each parent is required to “sign on the dotted line”. It means that each parent has the ability to do so. It also means that each of the parents is entitled to access the information about their child such as from health or educational providers. If the parents disagree, then court action may be filed to determine who gets to make the decision.
- Sole Legal Custody: Only one parent has the right/responsibility to make legal decisions or receive information. This is generally disfavored in Maryland absent a compelling reason.
It is worth noting that one of the more commonly perpetuated myths about a custody case is that the court “favors” the mother. This is not the case as Judges in Maryland do not automatically give preference to either the mother or the father and, in fact, have been moving more and more towards ensuring that children have equal access to both parents. There are many factors that judges must take into consideration when determining what type of custody is in the “child’s best interest”.
Before any custody “battle” begins, it’s best if parents have not only their own understanding of what is considered but also knowledgeable representation in order to ensure that the best possible outcome is achieved. A skilled lawyer will take the time to explain to his or her client all of the possible outcomes they stand to face. One of Ferrante and Dill’s founding partners, Jennifer Dill, is one of the most distinguished Family Law attorneys in Southern Maryland. She has been recognized by Super Lawyer’s magazine as one of the Top 50 Women Lawyers in Maryland. Call our office today to set up a consultation! (410) 535-6100 or email us at info@ferrantedill.com.
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What is Marital Property?
One of the most stressful and aggravating parts of going through a divorce can be the division of marital property. It is up to the courts to decide how to fairly divide years, sometimes decades-worth of shared property between two former spouses. In some states, a community property regime is in place to help the courts divide marital property. In these states, all property is considered to be owned jointly by both spouses and is divided down the middle upon a divorce or annulment. Maryland is not a community property state; it is an equitable distribution state. The courts in Maryland focus on dividing marital property fairly between two spouses, rather than equally.
What is and is not Marital Property?
Marital property is any and all property obtained during the course of the marriage, regardless of which spouse actually paid for it. It can include houses, cars, furniture, appliances, stocks, bonds, jewelry, bank accounts, pensions, retirement plans and IRA’s. The exception to this rule is anything that one spouse inherits or has gifted to them by a third party. Non-marital property also includes anything that was purchased/owned prior to the start of the marriage. Some assets, like houses, can be both marital and non-marital property. If the house was purchased prior to the start of marriage it is non-marital property. However, if you and your spouse use income earned during the marriage to pay the mortgage of that house, it may then be considered both marital and non-marital property.
Making a Claim for Property Division
If you and your ex cannot agree on how to fairly divide your marital property, a judge can decide for you. In order to determine each person’s share of the marital property, a variety of factors are taken into consideration in the judge’s determination:
- The contributions, monetary and non-monetary, of each spouse to the well-being of their family;
- The value of all of the property interests of each spouse;
- The economic circumstances of each spouse at the time the award is to be made;
- The circumstances and facts which contributed to the divorce;
- The duration of the marriage;
- The age and physical and mental condition of each spouse;
- How and when specific marital property was acquired;
- Any award or other provision which the court has made with respect to family use personal property or the family home, and any award of alimony;
- How much each spouse contributed to the purchase of the property in question
If marital property cannot be physically divided and/or is only titled in one spouse’s name (like a house or car), the judge may order one spouse to pay a sum to the other as a way of fairly dividing the property. One might be allowed to “buy out” the other spouse as long as they can remove him/her from any existing debt on the property. Otherwise, the property will be sold and the funds fairly divided.
This area of the law can be very complex and difficult to navigate. Make sure you have a skillful and knowledgeable attorney by your side to make sure your property is being divided fairly amongst you and your ex. If you need any advice or assistance, let Ferrante and Dill be there for you! Contact us today to set up your consultation!
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What it means to be “Separated” in Maryland
What do you do when you find yourself in that heartbreaking predicament when, instead of growing old together, you and your spouse just grew apart? For many people the answer is clear: divorce; a complete dissolution of the marriage and a chance to start over with a clean slate. For others, the waters are a bit murkier. What if I we’re not sure? What if we think there’s a chance of a new beginning together but we need some time apart to figure things out? In many cases, a separation can be a cathartic experience for struggling couples, a chance to gain a fresh perspective to maybe come back to the marriage some weeks or months later, and work together to build a healthier relationship. It may already be clear though that divorce is inevitable and it is time to move on. But what exactly does it mean to be “separated” in Maryland?
Each state has its own way of handling separation and divorce. In Maryland there is technically no such thing as a “legal separation”. You don’t need to file anything in the courts in order to legally qualify as being separated. In fact, there’s not much you are really required to do except physically live apart. The closest thing to a legal separation in Maryland is a Limited Divorce.What is a Limited Divorce?
A limited divorce is the equivalent of a legal separation. It is the legal declaration that you and your spouse are separated but it will not permanently terminate your marriage. Instead, you remain legally married while “legally” living separate and apart from one another. Neither you nor your spouse can remarry and the courts will not make final alimony or property determinations. Filing for a limited divorce is a way to get legal help resolving custody or short-term financial issues for those who don’t qualify for an absolute divorce yet but who are not able to settle their differences outside of a courtroom. And you must have the grounds (the legal reasons) in order to be granted a limited divorce just as you would for an absolute divorce.
What are the grounds for a Limited or Absolute Divorce?
Whether you file for a limited or absolute divorce, you must be able to prove the following grounds in order to be granted the divorce. Those grounds include:
- Separation: you and your spouse have been living separate and apart from one another for a continuous period of one year for an absolute divorce (only one day needed for a limited divorce) and have not had sexual relations
- Mutual consent (absolute divorce only): you don’t have any minor children and you have entered into a written settlement agreement signed by both you and your spouse that resolves all issues between the two of you (more on written agreements below). There is no requirement to live separate and apart.
- Adultery (absolute divorce): as mentioned above, sexual relations between a married person and another person outside of the marriage. There is no requirement to live separate and apart.
- Desertion: an unjustified abandonment with intention of terminating the marriage (one day for limited divorce and one year for absolute divorce)
- Cruel or violent treatment of a spouse or minor child (absolute divorce only)
- Insanity (absolute divorce only): the spouse has been declared legally insane by a licensed doctor, and the insane spouse has been kept in a mental institution for at least three years prior to filing for an absolute divorce
- Incarceration (absolute divorce only): a spouse has been convicted of a crime, has been sentenced to jail for a period of three or more years, and has served at least 12 months of that sentence prior to filing for an absolute divorce
What does it mean to live “Separate and Apart”?
In order to satisfy the requirement of living separate and apart, there must be a complete separation of living areas. Simply moving to another bedroom in the same house is not enough. You must truly live independently from each other. Even one night under the same roof could disqualify you. And a basement or in-law apartment generally only qualifies if you have a separate entrance, bathroom, cooking facilities, and some judges may even have a problem if you share a laundry room. And there can’t be any acts of reconciliation, ie, no sexual relations. Any of these could start the one-year clock ticking again.
What is a “Written Settlement Agreement”?
A written settlement agreement is a contract between spouses that generally resolves all of the end-of-marriage issues such as custody & access, financial support, division of marital property including retirements and real property, taxes, inheritance, etc. Especially if done early enough in the process, a written agreement can help everyone move on with their lives in a much more predicable manner without having to trudge through a lengthy court process. And since by its nature it is a document that is negotiated and agreed upon, it can be far more flexible and reflective of what is important to the family than what a judge can do. Once executed, all terms are binding (except perhaps custody and child support which are always reviewable by a court although generally you will need to be able to justify the requested changes). All of the provisions in the Agreement become court orders at the Judgment of Absolute Divorce and then enforceable like any other court order.
If you find yourself at the fork of separation and absolute divorce, you may have more than a few difficult decisions ahead of you. But choosing a knowledgeable and experienced lawyer doesn’t have to be one of them. The Family Law attorneys at Ferrante & Dill are ready and willing to help guide you down whatever path you choose. -
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