Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

February 2010 Archives

Recent Weather Events Present Difficult Legal Burdens of Proof for Injury Victims

Our firm has received more than a few calls from prospective clients who suffered injury as a consequence of the recent and unprecedented snowfall that hit our region. We anticipated these calls and the lawyers at the firm continue to assess our ability to prevail in cases involving slips and falls on ice and snow, and motor vehicle accidents caused by the slick conditions or other naturally created or man made hazards.

Fairfax County Jury Awards Nearly $3 Million Dollars in Malpractice Case

On February 16, 2010, a Fairfax County, VA jury awarded nearly $3 million to the family of a man who died from an undiagnosed espophgeal (throat) tear. Hector Alvarez, who was 52, had difficulty swallowing a piece of meat in July of 2006. He went to Inova HeathPlex where a radiologist diagnosed him with a hiatal hernia. He was initally treated with oral medications, but his pain continued. It was not until the next afternoon that his physicians spotted the perforated exophagus. Before the surgery to repair the tear could be performed, Mr. Alvarez went into cardiac arrest and died.

Louisiana Supreme Court Vacates Intermediate Appellate Court Decision Declaring Unconstitutional State's Damages Cap

The long battle over the constitutionality of Louisiana's medical liability damages cap continues. In 2006, the state's intermediate appellate court, the 3rd Circuit Court of Appeals, struck down the state's total damages cap of $500,000, excluding future medical expenses, as unconstitutionally burdening patients' access to recovery and ruled that in today's dollars, the cap is worth only $160,000. Arrington v. ER Physicians Group, APMC; Taylor v. Richard J. Clements, M.D., Louisiana Patient's Compensation Fund.

Thought the Housing Market was Recovering? You Thought Wrong!

Sales of new homes unexpectedly fell last month (January), even though economists thought sales would increase. This is yet another sign that the home purchase tax credit is not reigniting demand. These numbers also give credence to the notion that the economic recovery is still in its early stages. What is robbing demand for new homes is a new wave of foreclosures that is flooding the market with supply. Simple economic theory holds that when supply is increased, prices fall. This fact, coupled with the decrease in demand caused by job loss, hard to find credit, and low consumer confidence all translates to a long arduous recovery in the housing market. The decrease in demand and increase in supply also equates to a decrease in the average selling prices of homes nationwide.

Maryland Appellate Court Adopts "Analytical Approach" in Determining Whether Damages Award Constitutes Marital Property

The Maryland Court of Special Appeals today ruled in Murray v. Murray (No. 2432, Sept. Term 2007 (reported)) that a determination of whether a plaintiff's recovery for employment discrimination constitutes marital property for divorce distribution purposes hinges on the classification of the damages awarded by the judge orjury. The Court embraced the "Analytical Approach," under which a judge must determine "what the award, settlement, or judgment was intended to replace" and must consider "the nature of the personal injury award or settlement to explain why the property is the separate asset of a spouse or why it should be considered marital subject to equitable distribution." The Court rejected other approaches that consider the timing of the underlying claim or settlement/award.

Police Officer Cannot Claim Immunity For Intentional Torts

On February 19, 2010, Maryland's highest court issued its decision in the case of Houghton v. Forrest, holding that a Baltimore City police officer cannot claim immunity from suit for intentional acts of assault, battery, false arrest and false imprisionment. This ruling is an important victory for Maryland citizens who are subjected to these types of harm at the hands of a public official.

Failure to Remove Snow and Ice From Your Vehicle May Expose You to Civil Liability for Accidents

After the massive snow storms of recent days, many have experienced the flying snow and ice scenario, where a car or truck is driving at high speeds with piles of snow and ice on their vehicles. Although some may believe that bad weather provides them with some sort of "natural" immunity for failing to take the time required to remove the snow from their vehicles and that nature will simply takes its course, the opposite is actually true. Should an operator fail to remove snow and ice that ultimately flies from their vehicle into another, and particularly if that flying debris causes property damage or an accident, the driver of the vehicle can and should be held liable for negligence in failing to take action to remove all snow and ice that could project into another vehicle.

Democrats Should Not Run for the Hills on Healthcare Negotiations by Agreeing to Tort Reform

With the absence of a supermajority in the Senate, President Obama is faced with the prospect of reconciliation or compromise in order to get a healthcare bill on his desk. Trial lawyers and other interest groups, however, are urging the President not to compromise on his prior position that tort reform would not be part of any negotiations to get a healthcare bill passed. Some believe, however, the President is wavering and is heading in the direction of giving in to the Republican's top priority of getting significant tort reform measures added as part of a "bipartisan" healthcare bill.

Thinking About Short Selling Your Home? Think Again!

With the onslaught of foreclosures currently in the pipe line, homeowners are pursuing many avenues in an attempt to limit the damage of a foreclosure that will be caused to their credit, their pocket books, and their lives. When loans aren't being modified, when defaults occur after a modification, or when no one will buy your home for what it is worth, many homeowners are seeking to "short sell" their homes to avoid a foreclosure sale. What is a "short sale" anyway? A "short sale" is when a homeowner sells their home for less than what is owed on the outstanding mortgage balances. In order to effectively and properly "short sell" a home, the bank holding the mortgage rights must agree to accept an amount less than what is owed. The agreement by the bank to accept less than what is owed, however, is fraught with peril and uncertainty. Typically, agreements entered into between banks and homeowners regarding short sales are often times silent as to the treatment of the deficiency balance that will exist after a short sale. For example: if a homeowner owes $100,000 on their mortgage, but through a short sale agreement the bank is willing to accept only $80,000 from the short sale, then a deficiency balance of $20,000 owed to the bank will arise. Short sale agreements are typically silent to the treatment of the remaining deficiency balance.

Foreclosures: Still a Looming Problem in Maryland

Although statistics suggest that worst of the foreclosure crisis has hit its peak, there exist certain trends that show other distresses will persist for years. In the State of Maryland in 2009, one in every 54 homes were in some stage of foreclosure totaling 43,248 units. In 2008 a little less, 32,347 home were on the bloc. Although this represents a significant 33.7 % spike in totals, the rate of increase is actually slowing, according to the Daily Record Business Writer. Maryland followed the national trends with a vast majority of foreclosure sales hitting the market in 2007 and 2008.

Ilinois Declares Malpractice "Cap" Unconstitutional

On February 4, 2010, in the case of Lebron v. Gottlieb Memorial Hospital, Docket Nos. 105741 and 105745, the Supreme Court of Illinois struck down the cap on non-economic damages in medical malpractice cases, holding that the cap, which had limited damages to $500,000.00 for doctors and $1,000,000.00 for hospitals, is unconstitutional because the law violates "separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts." The Supreme Court noted that such a cap impedes a jury's right to establish reasonable damages.

$5.9 Million Dollar Verdict in Premises Liability Case in Baltimore City Today

A verdict in the amount of $5.9 million dollarswas reached today in favor of a 32 year-old womanagainst a vending company defendant. The Defendant had hired a crane to remove a pool table from the second floor of a bar. To prepared for the move, a portion of a fire escape rail was removed and tied back with a section of clothesline. Three years later, the plaintiff, attending a party at the bar, was on the fire escape landing and was shoved into the tied-on railing when a door was opened. The railing gave way and the woman fell 15 feet onto the concrete below. She suffered a severe spinal cord injury. The jury awarded $381,228.00 in past medical costs, $2,532,775.00 in future medical costs, $26,875.00 in lost wages, and $2,971,750.00 in pain and suffering (non-economic) damages. The trial was presided over by Judge Evelyn Omega Cannon in Baltimore City Circuit Court. The law firm of Fick & May represented the plaintiff. It is likely that the defendant will seek to reduce the portion of the verdict awarded for pain and suffering to comply withthe maximum amount allowable fornon-economic damages permitted under Maryland law, known as the "cap".

Home Foreclosures & Bankruptcy: What is a Past or Present Homeowner to Do?

Has your home been foreclosed upon? Before taking any action or inaction, stop and read this article first! If your home has already been foreclosed upon, there may be significant legal problems coming your way. Typically, when a borrower has significantly defaulted on their mortgager loan, banks will normally foreclose on the borrower's loan and sell the borrower's property at an auction in an attempt to recoup some of the monies it is owed. That borrower is then legally responsible for the difference between the foreclosure sale price and the amount still outstanding on the mortgage loan. This difference is known as the mortgage deficiency balance. In addition to seriously damaging your credit, the foreclosing bank then generally has the legal right to pursue the borrower for this deficiency balance. In most cases today, this deficiency balance can be significant. Because of the turmoil wrought by the Great Recession, more and more lenders are exercising their legal rights and pursuing defaulting borrowers for their mortgage deficiency balances owed after foreclosure. To get their money, banks can seize wages, garnish bank accounts and place liens on other assets held by debtors.

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