Articles Posted in Arbitration

Many savvy corporations and other entities in Maryland are slyly slipping in arbitration clauses in agreements between parties. Many times these arbitration clauses force victims of personal injury to forgo their right to a jury trial and and undergo binding arbitration. Many times consumers do not even realize what they have agreed to because the arbitration clause is buried in the fine print of a document or contract.

History of Arbitration in Maryland:

In 1973, the Maryland Legislature adopted the Maryland Uniform Arbitration Act (hereinafter, “MUAA”). See MD. CODE ANN. CRTS. & JUD. PROC. §§ 3-201, et seq. (West 2010). Arbitration is the process whereby parties voluntarily agree to substitute a private tribunal (e.g. the arbitrators) for the public tribunal (e.g. the courts) otherwise available to them. Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 103, 468 A.2d 91, 95 (1983). Parties may agree to arbitrate disputes pursuant to a contract between them, commonly known as an Arbitration Agreement. Id.

Matters which fall within the scope of an Arbitration Clause are subject to the procedures for arbitration set out in the agreement between the parties and the MUAA. “Where there is a broad arbitration clause, calling for the arbitration of any and all disputes arising out of the contract, all issues are arbitrable unless expressly and specifically excluded by the agreement.” Id. at 104. When the language of the agreement is ambiguous or unclear as to whether a matter falls within the scope of the Arbitration Clause, the Court of Appeals of Maryland has held that the initial determination of whether a matter is arbitrable or not, should be left to the arbitrator and not the courts. See id. at 105 (“Question of substantive arbitrability initially should be left to the decision of the arbitrator, not the courts.”).
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It’s a familiar, but fallacious argument. A favorite of defense counsel and insurance companies in automobile accident cases: “There was a minor impact, therefore there can only be minor injury, if any injury at all.” Defense lawyers often try to introduce into evidence distorted, grainy or out of focus photographs of minimal property damage without providing any expert testimony about the causal relationship between the amount of property damage and the victim’s injuries. The purpose of this tactic is to disprove by false implication what has been proven by medical evidence; to rebut the testimony of a licensed physician that has reached an opinion to a reasonable degree of medical certainty that the victim’s injuries were caused by the accident in question. There is no mention of the sudden and very high energy forces that are transmitted through the vehicle in the milliseconds after the impact. No mention of the fact that most modern cars are built to withstand a 10-15 mile per hour rear impact without suffering significant property damage, particularly if you’re dealing with an SUV or truck.

Armed only with poor quality photos, too many defense counsel will attempt to manipulate the ignorance (or prejudice) of would be jurors. Such a defense lawyer hopes to prove by innuendo what they know they can’t prove legitimately: minimal damage to a vehicle equates to minimal damage to a human in the car.

In reality, a crash with very little visible property damage can cause extensive, painful and permanent injuries. Crash impact forces are transmitted into sudden and high energy forces causing unexpected acceleration of the subject vehicle, while the occupants of the vehicle (heads, necks, etc.) try to stay in place as their seat-belted bodies are thrust forward by the impact. This sequence of events can lead to a myriad of injuries, including, strained or torn ligaments, weakened connective tissue, bulging or blown discs, hyperextension/hyperflexion of the vertebrae and other painful conditions.

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