CHAPTER SIXTEEN DAMAGES IN MOTOR VEHICLE COLLISION CASES
| Jurisdiction | Maryland |
NATHANIEL FICK received his undergraduate degree from the University of Maryland and law degree from the University of Baltimore. For 42 years of civil trial practice, his concentration was on Neurolaw (Brain Injury and Spinal Cord Injury), other Personal Injury and Wrongful Death, and Insurance and Business litigation. He became a Board Certified Civil Trial Specialist with the National Board of Trial Advocacy from 1995, and a member of the American College of Legal Medicine and the Association of Trial Lawyers of Ameri ca, a founding member of Trial Lawyers for Public Justice, The Civil Justice Foundation, and The Public Justice Society, a Lifetime Fellow of the Roscoe Pound American Trial Lawyers Foundation, and of the John Marshall Honor Society. Mr. Fick served 10 years as a board member of the Brain Injury Association of Maryland and four years as President, and was a member of the International Brain Injury Association, Brain Injury Association [USA], National Spinal Cord Injury Association and American Trauma Society. Mr. Fick served as a Trustee on the Shock Trauma Research Fund for five years. He was a contributing editor to EVIDENCE IN AMERICA, THE FEDERAL RULES IN THE UNITED STATES (Michie) and a contributing author to Innovations in Jury Trial Procedures (National Center for State Courts). Mr. Fick served for 10 years on the Board of Governors of the Maryland Trial Lawyers Association (now Maryland Association for Justice). He enjoys serving on the Dean's Development Circle for the University of Baltimore School of Law. As a general aviation pilot for 30 years, he now advises general aviation pilots, and since 2017 only mediates litigated cases.
ROBERT R. MICHAEL, (previous edition) of Shadoan, Michael & Wells, LLP, received his J.D. degree from George Washington University in 1971. He has been listed since 1986 in the publication Best Lawyers in America. He is a member of the American Board of Trial Advocates, is a Fellow in the American College of Trial Lawyers, is a Fellow in the International Academy of Trial Lawyers, and a member of the Inner Circle of Advocates. He is a past President of the Maryland Trial Lawyers Association, a past President of the Montgomery County Bar Association, a past President of the Montgomery County Bar Foundation, a past President and founder of the Montgomery County Inns of Court and a past Chair of the Litigation Section of the Maryland State Bar Association. He is a founding member of Trial Lawyers for Public Justice, a member of the Civil Justice Foundation, and the Roscoe Pound American Trial Lawyers Foundation. In 1987 he received the Section Chairman of the Year award from the Montgomery County Bar Association. In 1999 he was one of 25 lawyers to receive the Century of Service Award for outstanding contributions to the legal profession and the community during the Twentieth Century from the Montgomery County Bar Association. He is a Fellow of both the American Bar Association Foundation and the Maryl and State Bar Association Foundation. He is an invited attorney member of the Fourth Circuit Judicial Conference and was selected as a member of the Civil Justice Reform Act Committee for the U.S. District Court of Maryland. Mr. Michael is a prolific author and lecturer in the areas of his practice, which include personal injury litigation, negligence, medical malpractice and products liability. His writings include contributions to: The Maryland Bar Journal (MSBA); Maryland Tort Damages, 5th Ed. (MICPEL), The Medical Malpractice Law of Maryland (MICPEL), Products Liability Law in Maryland (MICPEL); Closing Argument: The Art and the Law(-Clark, Boardman & Callaghan); Closing Argument (Stein); and Closing Argument for Children Wrongful Death and Injury Cases (Keenans Kids Foundation). He is also a multi-engine instrument rated pilot.
C. WILLIAM MICHAELS (current edition) was graduated from the University of Maryland School of Law in 1978. As a law student, he was on the staff of the Maryland Law Review and also the Managing Editor of the Maryland Law Forum. (At that time, the only law student to receive recognition for both publications.)
He has a B.A. in Politics and Philosophy from Brandeis University where he granted manga cum laude with special honors. He was also on the staff of its weekly newspaper The Justice.
After law school, he clerked for a Circuit Court judge in Howard County. Following that, he was Editor in Chief and General Manager for a daily newspaper also in Howard County. And his experience includes a position as Legal Editor at Bureau of National Affairs (now Bloomberg BNA). He has conducted a solo appellate practice based in Towson for 20+ years, drafting briefs or as a lead counsel for appellate cases in Maryland appellate courts, District of Columbia appellate courts and also in the federal Circuit Courts of Appeal for the: Fourth Circuit, the District of Columbia Circuit and the Federal Circuit. He is also a member of the bar of the United States Supreme Court.
Mr. Michaels is a book author: No Greater Threat: America After September 11 and the Rise of a National Security State (Algora Publishing, 2002, second edition 2005). He is a former member of The Daily Record Editorial Advisory Board.
Mr. Michaels is a member of the Maryland State Bar Association, Baltimore City Bar Association, Baltimore County Bar Association and the Maryland Association for Justice.
I. INTRODUCTION
As a general rule, a person is liable for all compensatory damages "proximately caused by any negligence with which he is chargeable, and any limitation of such liability must be based upon some contract, statute, or rule of law, of which he is entitled to claim benefit."1
The fundamental goal of tort recovery is compensation of the victim, i.e., to put the victim, insofar as money damages may do so, in the position he or she would have been in, absent the tort.2
The plaintiff has the burden to prove by a preponderance of the evidence each item of damage claimed to be caused by the defendant. "One may recover only those damages that are affirmatively proven with reasonable certainty to have resulted as a natural, proximate and direct effect of the injury."3 With few exceptions, the general rule is that expenses of litigation, including legal fees incurred by a successful party, are not recoverable in an action for damages, unless special conditions such as a contract by the parties for payment of attorney's fees or a statute provides otherwise.4 Usual and ordinary court costs, however, may be recovered. Other exceptions to the general rule include:
(1) where collateral litigation becomes necessary because of the improper conduct of the defendant in the first proceeding;5
(2) where an insurance company improperly refuses a defense to an insured;6
(3) where the action arises from a violation of a duty springing from a relation of trust or confidence or where there is gross fraud;7 and
(4) where an action is brought in bad faith or without substantial justification.8
(5) where punitive damages are appropriate and the attorneys fees will aid the jury in calculating the appropriate amount to deter future wrongful conduct.9
For a general and more detailed discussion of damages for all types of personal injury actions, see MARYLAND TORT DAMAGES, 5TH EDITION. (MICPEL 2000).
II. PROOF
An award may not be based on possible, speculative, remote, or uncertain damages. Therefore, the jury is not allowed to render an award unless the injury and its cause are supported by reasonable probability or reasonable certainty.10 "[P]robability exists when there is more evidence in favor of a proposition than against it," whereas "mere 'possibility' exists when the evidence is anything less."11 This standard of reasonable probability applies to future pain and suffering as well as future physical complications.12 Thus, any future complications from a malady that are not probable, are risks that the injured person must bear because a possibility is too speculative to support an award.13
III. DAMAGES—THE MARYLAND STATUTORY SCHEME
There are three types of damages that may be awarded in Maryland: non-economic, economic, and punitive damages.
Generally, non-economic and economic damages are awarded to a person as compensation, indemnity, or restitution for harm sustained, and they are recoverable not only where they can be measured precisely (e.g., medical expenses), but also where the trier of fact can estimate a value for the harm suffered by the victim (e.g., pain and suffering). They may include an enhanced value beyond the value of the thing taken.14 Non-economic damages are further discussed in section IV of this chapter. Economic damages are further discussed in section V of this chapter.
Punitive or exemplary damages are awarded to punish a wrongdoer for outrageous conduct where the injury has been inflicted maliciously or wantonly. Such damages act as a deterrent to others who might engage in similar conduct.15 Because such damages reflect punishment and deterrence, there is no precise formula for their measurement. Recent cases have referred to punitive damages as "civil fines."16 It should be observed that Maryland has experienced substantial change in this area since the Zenobia decision in 1992.17 The Court of Appeals of Maryland has made clear the necessary prerequisites for a punitive damage award: "Lest there be any remaining doubt, in order to recover punitive damages in any tort action in the State of Maryland, facts sufficient to show actual malice must be pleaded and proven by clear and convincing evidence, and a specific demand for the recovery of punitive damages must be made before an award of such damages may be had."18 Punitive damages...
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