- August 28, 2017
- Posted by: admin
- Category: Automobile Accident Claims, personal injury
Can I use a Maryland lawyer for an accident that happened in Washington DC?
Yes. If you live in Maryland but were in an accident while you were Washington DC, The Law Office of Marc Atas and Associates will represent you for your personal injury, car accident, truck accident, automobile accident, and property damage claims. While we are only licensed to practice law in the State of Maryland, we can do the following legal activities on your behalf. The Law Office of Marc Atas and Associates can resolve your car damage claim, diminished value of car claim, make sure you receive timely medical treatment, aid the insurance company in accepting liability, take statements from witnesses, obtain police reports and finally attempt to settle your claim. If we are unable to settle your claim, we will locate counsel in the appropriate state to file suit and go to court on your behalf. The attorney fee arrangement will remain the same even if additional counsel is necessary and will not result in any additional fee. The personal injury, car accident, truck accident, and automobile accident laws in Washington DC are complicated. I have outlined the basic laws that apply when involved in personal injury, car accident, truck accident, or automobile accident in Washington DC.
DISTRICT OF COLUMBIA
Negligence / Personal Injury- Time Limits to File a Lawsuit
Washington, D.C. has a time limit, known as the statute of limitations, that affects how long you have to file a personal injury lawsuit in court after an injury. D.C.’s time limit is three years, and it typically begins to run on the date of the accident or incident that led to your injuries.
For negligence causes of action alleging personal injury or property damage, the statute of limitations is 3 years. See D.C. Code § 12-301(3). For contract actions, the statute is 3 years. See D.C. Code § 12-301(7). As the statute of limitations is an “affirmative defense,” it must be raised in the first responsive pleading or it is considered waived.
- Medical Malpractice
The statute of limitations for filing actions for medical malpractice is 3 years from the date the cause of action accrues. If a medical malpractice claim arises from a foreign object left in the body of the plaintiff, the statute extends to one year from the date the object is discovered or reasonably should have been discovered. See Burke v. Washington Hospital Center, 293 F.Supp. 1328 (1968); Burns v. Bell, 409 A.2d 614 (1979).
- Wrongful Death
The statute of limitations for a wrongful death action is 1 year from the date of death. See D.C. Code § 16-2702. If the wrongful death occurred in another state, that state’s wrongful death act may govern. If a specific statute of limitations is included in the foreign state’s act, that limitation period may apply in the District of Columbia proceeding.
- Survival Action
The statute of limitations for a survival action is 3 years from the date of death. See D.C. Code § 12-301 (8); Strother v. District of Columbia, 372 A.2d 1291 (1977).
The limitations period for an action for fraud is 3 years from the date of the fraud or misrepresentation. See King v. Kitchen Magic, Inc., 391 A.2d 1184 (1978). However, if the fraud or misrepresentation at issue prevents the discovery of the cause of action, the period may be extended until it is discovered, provided the plaintiff exercised due care to investigate and identify the cause of action.
- Intentional Torts
The limitations period for an action for an intentional tort, such as libel, slander, assault, battery, malicious prosecution, false arrest, and false imprisonment, is 1 year. See D.C. Code § 12-301 (4).
- Tolling the Statute of Limitations
The running of the limitations period for any given action may be tolled, or suspended, in certain special circumstances. The most common situations where a claimant may be given additional time in which to bring a claim include: the claimant is a minor; the claimant is incapacitated during the limitations period; the claimant is incarcerated; or the death of either the claimant or the defendant. See D.C. Code § 12-301 et. seq..
Municipal Liability/Sovereign Immunity
Action against the District of Columbia requires notice in writing to mayor within 6 months of injury, or police report.
SOL runs from when injury was, or should have been discovered.
1 year from discovery that injury or death was caused by exposure to asbestos.
3 years for unspecified actions.
Sexual Abuse of a Minor: 7 years from 18th birthday or 3 years from discovery, whichever is greater.
Injuries from toxic substances: 5 years from discovery.
Washington, D.C. follows a Contributory negligence rule.
SOL runs from removal of disability. Infants (18th birthday).
Washington, DC – No Fault Statute
If you are involved in a motor vehicle accident within the District of Columbia and your auto policy is written in the District of Columbia, you MUST elect, within 60 days, whether you will file a no fault claim or whether you will pursue a third- party claim. You must choose one or the other. You can only file a no fault claim and pursue a third- party claim under the following circumstances:
Injury from accident results in permanent disfigurement
Permanent impairment has significantly affected ability to perform professional/daily activities
Impairment prevents you from doing all customary activities for a period of 180 days continuous
Medical rehab expenses or lost wages exceed the amount of no fault benefits. (be careful, no fault benefits are significantly more in DC than in MD, i.e. $50,000.00)
Since the injury thresholds in D.C.’s no-fault law are flexible, you’ll have some room to negotiate when it comes to talking to insurance companies about whether you’re entitled to take your case outside of no-fault.
If you have a DC policy but are involved in an accident outside the District of Columbia, you do not have to elect collection of PIP or third party, you can pursue both. PIP will be paid out for all reasonable medical expenses and there is no subrogation of these benefit payments.
If you are involved in an accident in the District of Columbia but have a policy from another State, there is no election, and you would collect PIP as you would under your policy and are free to pursue a third party claim within the District of Columbia.
In The District of Columbia however, a specific statute (D.C. Code Ann. § 8-1812) makes the owner of a dog “strictly liable”, meaning regardless of the animal’s past behavior, the dog owner is responsible for a personal injury caused by his/her dog.
Injury Claims Against the Government
If it turns out that the D.C. government or one of its employees played a role in causing your injury, you have six months to file a formal claim with the government, putting them on notice that you’ve been injured.
DISTRICT OF COLUMBIA TORT LAW PROFILE
- Trial Court
The Superior Court is the primary trial court in the District of Columbia
- Small Claims and Conciliation Branch
The Small Claims and Conciliation Branch has jurisdiction over cases where the amount at issue does not exceed Five Thousand Dollars ($5,000). Juries are not available, and generally, neither are judges. Most actions in the Small Claims and Conciliation
- Reputation of the Superior Court in the District of Columbia
In general, juries and judges in the District of Columbia Superior Court are very liberal, and are known for being relatively plaintiff-friendly, particularly in cases with corporate defendants. Jurors are often willing to overlook indiscretions such as criminal records, poor employment histories, surveillance videos and otherwise negative personal characteristics. Further, cases often are delayed in this Court, sometimes for years.
- Jurisdiction / Venue
As the only Court for the District of Columbia, the Superior Court has jurisdiction over its residents, and causes of action arising in the District of Columbia. See D.C. Code § 11-921 (a).
- Common Causes of Action
- Imputed LiabilityB. Imputed Liability
- Employer. Employer
An employer may be held responsible for the torts of his/her employee under three distinct theories: respondeat superior, negligent hiring and retention, and negligent entrustment.
- Respondeat Superior
Under this doctrine, an employer may be held vicariously liable for tortious acts proximately caused by an employee, as long as those acts are within the scope of employment. In order to prevail under this theory of recovery, a plaintiff must prove (1) a master and servant relationship between employer and employee; (2) that the employee was in the process of his employer’s business at the time of the tort; and (3) that the employee was in the scope of his employment at the time of the tort. The scope of the employment is defined as “incidental” to an employer’s business and done “in furtherance of” the employer’s business. An employee who deviates far from his duties has taken himself out of the scope of the employment. However, an employee’s willful or malicious act may still be within the scope of employment.
- Negligent Hiring and Retention
In order to establish a claim for negligent hiring or retention, a plaintiff must prove that the employer of the individual who committed the allegedly tortious act negligently placed an unfit person in an employment situation involving unreasonable risks of harm to others. The District of Columbia has also recognized negligent retention of an independent contractor.
- Negligent Entrustment
An employer who allows an employee to use a vehicle or other
property when the employer knows or has reason to know that because of the employee’s youth, inexperience, physical or mental disability, or otherwise, the employee may use the vehicle or property in a manner involving unreasonable risk of physical harm to himself and others, is subject to liability.
Employers, generally, are not liable for the acts of independent contractors, as opposed to employees. However, there are limits to this immunity from liability. Wilson v. Good Humor Corp., 757 F.2d 1293, (D.C.Cir.1985).
- Automobile Cases
There is no unauthorized passenger defense in the District of Columbia. The negligence of the driver of an automobile will not be imputed to a mere passenger, unless the passenger has or exercises control over the driver. A guest has a right to maintain an action for damages against an owner or operator of an automobile in which he/she is riding.
The former statutory provision deeming an individual operating a motor vehicle to be the agent of the owner was repealed. See Johnson v. Agnant, 480 F.Supp.2d 1 (D. D.C. 2006)
- Parental Liability for Torts of Children
Cases dealing with the liability of parents for acts of minor children impose such liability where the parent has permitted a minor to use a dangerous instrumentality, or where they have knowingly permitted, encouraged, or failed to discourage, conduct inherently dangerous to others or prohibited by law intended to promote public safety. See Bateman v. Crim, 34 A.2d 257 (D.C. Mun. App. 1943).
- Dram Shop. Dram Shop
A vendor of alcoholic beverages can be held liable for injuries sustained by a third party that result from the intoxication of the vendor’s patron.
- Social Host Liability
Social hosts have no duty and are not liable to parties who are injured when alcohol is served to guests. See Wadley v. Aspillaga, 163 F.Supp. 2d 1 (D.D.C. 2001).
- Wrongful Death
A wrongful death action is brought by certain relatives or beneficiaries of a decedent and seeks recovery for their loss as a result of the death of the decedent. The focus on this type of action is not on the damages incurred by the decedent, but on the loss incurred by the plaintiffs.
- Plaintiffs and Beneficiaries
The Wrongful Death Statute specifies that any action brought under it should be presented by the personal representative of the decedent. See D.C. Code § 16-2702. The personal representative is either an executor or administrator of the decedent’s estate. See Strother v. District of Columbia, 372 A.2d 1291 (D.C. 1977). Any damages recovered on a wrongful death case go solely to the benefit of the spouse and next of kin. See D.C. Code § 16-2701-2703.
- Statute of Limitations. Statute of Limitations
A wrongful death action must be filed within one year from the date of death. See D.C. Code § 16-2702.
- Damages. Damages
There are certain elements of damages which may, generally, be recoverable in an action brought under the Wrongful Death Act. See D.C. Code § 16-2701; Doe v. Binker, 492 A.2d 857 (D.C. 1985). Those elements are:
- Compensation for reasonably expected loss of income of the decedent and services, protection, care and assistance provided by the decedent;
- Expenses for the care, treatment, hospitalization of the decedent incident to the injury resulting in death; and
- Reasonable funeral expenses.
- It is noteworthy that a plaintiff in a wrongful death action in the District of Columbia may not recover for non-economic loss, such as grief or solace, to family members. See Hughes v. Pender, 391 A.2d 259 (D.C. 1978).
- Survival Actions
Any claim recognized by the law of the District of Columbia can survive the death of either the person entitled to assert such claim, or the person against whom such claim would be asserted. A survival action is brought by the legal representative of the Decedent, as opposed to the personal representative in the case of a wrongful death action. A legal representative is a person who is authorized to take the place of, and act on behalf of, the decedent, whether through operation of law or through a testamentary act by the decedent.
The proper measure of damages in a Survival Action is the compensation to the estate itself for the loss of prospective economic benefit in the form of the decedent’s prospective net lifetime earnings discounted to present worth. As with wrongful death actions, a plaintiff in a survival action in the District of Columbia may not recover for non-economic loss, such as grief or solace, to family members. See Hughes v. Pender, 391 A.2d 259 (D.C. 1978).
- Loss of Consortium
Loss of consortium means loss of society, affection, assistance, conjugal fellowship and loss or impairment of sexual relations, as a result of another tort or injury. The District of Columbia does recognize claims for loss of consortium. Generally, the party complaining of loss of consortium must have been married to the primary victim-spouse at the time their cause of action accrued. See Stager v. Schneider, 494 A.2d 1307 (D.C. 1985).
- Strict Liability
Strict liability is not generally recognized in the District of Columbia, except for products liability actions. H. Medical Malpractice
Actions for medical negligence are subject to the standard rules applicable to negligence cases generally. See also D.C. Code §§ 16-2801, et seq. There are some statutory provisions which apply to specific issues, such as the confidentiality attached to peer review documents. See D.C. Code § 44-805. The Plaintiff bears the burden of proving the standard of care, which in medical malpractice cases usually requires an expert witness. See Washington v. Washington Hospital Center, 579 A.2d 177 (D.C. 1990).
- Premises Liability
Premises liability actions are a version of negligence involving the liability of the owner or occupant (herein collectively “owner”) of real property for damage sustained by another person on the premises. Unlike many other jurisdictions, in the District of Columbia, the traditional status (either trespasser, licensee, or invitee) of the plaintiff, or victim, has for all practical purposes been abolished, particularly with respect to licensees and invitees. However, there is caselaw applying a stricter standard for trespassers.
- Duty Owed by Owner to Other Persons
A trespasser is a person who intentionally and without consent or privilege enters another’s property. Generally speaking, a trespasser may recover for injuries sustained on the property of another person only when he/she can prove that his/her injury is the result of willful, wanton, or intentional actions by the landowner. See Holland v. Baltimore & Ohio Railroad Co., 431 A.2d 597 (1981).
Some of the legal standards are different when the trespasser is a child, but generally the District of Columbia does adhere to the “attractive nuisance” doctrine. That doctrine provides that children are unable to control their impulses, and when a piece of property has some feature that children find interesting (pond, tower, etc.), that owner should anticipate that children may be drawn to that feature, and should take appropriate measures to protect such child trespassers. However, there are some cases inthe District of Columbia, where the danger is said to be so obvious that children of a certain age are presumed to recognize the danger and appreciate the risk of drawing near, i.e., the danger of a moving train. E.g. Foshee v. Consolidated Rail Corp., 849 F.2d 657 (D.C. Cir. 1988).
- Licensees and Invitees
A licensee is described as a person who enters the land of another, with permission, and for his or her own purposes and benefits. Licensees include the following classes of persons: social guests, hunters, persons who are invited into one portion of the premises and proceed to enter other portions, trespassers whose presence is known and acquiesced-to by the owner. An invitee is described as a person who enters the land of another, with permission, pursuant to the invitation.
While a landowner traditionally owed each of these classes of persons a different standard of care, the distinction has been abolished by case law in the District of Columbia. In Hopkins v. Baker, 553 F.2d 1339 (D.C. Cir. 1977), the Court noted the revised standard in the District of Columbia, which is applicable to both traditional licensees and traditional invitees. A landowner owes these persons a duty of exercising reasonable care to maintain his or her property in a reasonably safe condition. Factors to be considered include the likelihood of injury to others as a result of a particular condition or hazard, the seriousness of such injury if it were to occur, and the burden on the landowner of avoiding the risk.
- Snow and Ice
An owner, occupant, or person or entity in control of real property, including undeveloped lots of land, is required to remove snow or sleet from any paved sidewalk in front of or abutting such real property within 8 hours of daylight after the snow or sleet stops. See D.C. Code § 9-601. However, this statute does not create a private cause of action on the part of an injured person. See Albertie v. Louis and Alexander Corp., 646 A.2d 1001 (D.C. 1994); Murphy v. Schwankhaus, 924 A.2d 988 (D.C. 2007).
- Intervening Criminal Acts
Generally, an owner owes no duty to prevent the criminal acts of third persons on the owner’s property. However, exceptions to this general rule include: in landlord-tenant relationships, where the criminal acts are foreseeable, and would have been prevented if the landlord had acted in a reasonable manner under the circumstances. See Morton v. Kirkland, 558 A.2d 693 (D.C. 1989).
- Products Liability
The District of Columbia has adopted strict liability in products liability cases. In order to recover, a plaintiff must prove: (1) the seller was engaged in the business of selling the product that caused the harm; (2) the product was sold in a defective condition unreasonably dangerous to the consumer or user; (3) the product was one which the seller expected to and did reach the plaintiff consumer or user without any substantial change from the condition in which it was sold; and (4) the defect was a direct and proximate cause of the plaintiff’s injuries. A product may be found defective if it has one of three shortcomings: (1) a manufacturing defect; (2) an absence of sufficient warnings or instructions; or (3) an unsafe design. Where a vendor or merchant sells a product which is unreasonably dangerous, that vendor or merchant is liable for the injuries sustained by the consumer regardless of fault of the vendor or merchant, and regardless of whether there is privity of contract. Contributory negligence is not a defense in a strict liability action, but misuse of the product and assumption of the risk are valid defenses. See Young v. Up-Right Scaffolds, Inc., 637 F.2d 810 (D.C. Cir. 1980).
- Defenses to Claims. Defenses to Claims
- Contributory Negligence
As stated previously, the District of Columbia is a “contributory negligence” jurisdiction. Therefore, a lack of reasonable care on the part of the plaintiff, however slight, even one percent, is a complete bar to recovery if such negligence contributes to the plaintiff’s injury. See Aetna Casualty & Surety Co. v. Carter, 549 A.2d 1117 (1988). The evidence must show that the plaintiff’s conduct did not conform to the standard of what a reasonable person of like age, intelligence, and experience would do under the circumstances for his own safety and protection. The burden is on the defendant to prove plaintiff’s contributory negligence by a preponderance of evidence standard. However, in reality, a jury will not likely find contributory negligence unless the plaintiff’s negligence is substantial. A child under the age of 7 is conclusively presumed to be incapable of contributory negligence. However, the age of the child in a contributory negligence case is an issue of fact for the jury. Nat’l City Devel. Co. v. McFerran, 55 A.2d 342 (1947). The presumption may be rebutted for children between the ages of 7 and 14 (burden falls to defendant), and children over the age of 14 are rebuttably presumed to be capable of contributory negligence (burden falls to plaintiff).
- Assumption of the Risk
A plaintiff is completely barred from recovery if he or she assumes the risk of injury when, with full knowledge and understanding of an obvious danger, he or she voluntarily exposes himself or herself to that risk of injury. See Janifer v. Jandebeur, 551 A.2d 1351 (1989). See also Morrison v. MacNamara, 407 A.2d 555 (1979). The doctrine of assumption of risk requires showing: (1) that the nature and extent of the risk are fully appreciated; and (2) that the risk is voluntarily incurred. There are certain risks which anyone of adult age must be able to appreciate, including the danger of slipping on ice, falling through unguarded openings, and lifting heavy objects.
Assumption of the risk is a corollary doctrine to the contributory negligence defense, and the distinctions between the two generally depend upon the conduct and intent of the plaintiff. If the plaintiff acts with an understanding of the risks he or she faces, and the likelihood of injury is known, then he or she may be found to have assumed the risk. Alternatively, if the plaintiff acts without careful contemplation of his or her proposed actions and the consequences of the same, then plaintiff may be found to have been contributorily negligent.
- Spousal1. Interspousal
Spousal Immunity has been abolished by statute in the District of Columbia. See D.C. Code § 46-601.
- Parent-Child Immunity2. Parent-Child Immunity
An unemancipated minor may bring an action against a parent in tort, regardless of whether the parent has liability insurance. See Rousey v. Rousey, 528 A.2d 416 (1987).
- Charitable Immunity
The doctrine of Charitable Immunity is not recognized in the District of Columbia, and a charitable corporation is responsible for its negligent acts just as other entities and individuals are. See Carl v. Children’s Hosp., 702 A.2d 159 (1997).
- Last Clear Chance
While technically not considered a defense to a claim, last clear chance is a defense to contributory negligence. When a plaintiff is contributorily negligent, that plaintiff may claim that the defendant committed a fresh act of negligence at a time when the defendant could have avoided the accident and the plaintiff could not. This issue arises when plaintiff alleges that defendant was negligent, and defendant defends on the basis that the plaintiff was contributorily negligent. Plaintiff may then assert that the Defendant had the last clear chance to avoid the accident, after plaintiff’s negligent act, and that the defendant should be liable to plaintiff notwithstanding the plaintiff’s own contributory negligence.
- ExclusivityG. Exclusivity
Workers’ compensation is the sole remedy for an injured worker as against his or her employer or co-employee for injuries sustained in the workplace. See D.C. Code § 32-1504. The workers’ compensation bar is a special plea which must be raised either before the Answer is filed or concurrently with the Answer.
- Non-permissive Use
Statutory presumption that vehicle was driven with owner’s consent continues only until there is credible evidence to the contrary, and ceases when there is uncontradicted proof that the automobile was not being used with the owner’s permission. See D.C. Code § 50-1301.08; Jones v. Halun, 296 F.2d 597 (D.C. 1961).
- Plaintiff’s Failure to Mitigate His or Her Damages
Defendant bears the burden to prove that plaintiff failed to mitigate his or her damages to prevent recovery for those damages that could have been avoided if the plaintiff had taken reasonable measures. See Foster v. George Washington University Medical Center, 738 A.2d 791 (D.C. 1999).
- Compensatory Damages
“Special damages” are all those injuries that flow as a natural consequence of the tortious act. Beyond the immediate damage to the body is the possibility of manifold additional “out of pocket” expenses, also known as “special damages.” These damages may include, but are not limited to, medical, dental, or psychiatric treatment bills, bills for physical or vocational therapy, lost earnings, loss of earnings capacity, medication, prosthetic devices, transportation expenses to and from health care providers, property damage or losses, mental anguish or emotional distress, future medical expenses, permanent physical impairment, disfigurement, future lost earnings based upon life expectancy, and other probable future consequences. All special compensatory damages must be proven to a reasonable certainty and may not be premised upon mere speculation or conjecture.
- Bodily Injury
Economic and non-economic damages are recoverable. Economic damages are based upon the actual expense incurred or loss of value of those items or services. There is no cap on pain and suffering damages in the District of Columbia. All damages are determined by the trier of fact.
- Property Damage
Fair market value of property is recoverable. To determine fair market value, the property’s price, age, condition and any depreciation may be considered. See Weishear v. Canestrale, 241 Md. 676, 217 A.2d 525 (1966). Bastian v. Laffin, 54 Md. App. 703, 460 A.2d 623 (1983). Maalouf v. Butt, 817 A.2d 189 (2003).
- Total Loss of Motor Vehicle or Other Property
Fair market value is determined at the time of the loss. See Sawyer v. Monarch Cab Co., 164 A.2d 340 (D.C. App. 1960). When an automobile is practically destroyed or so extensively damaged as to be beyond repair, the measure of liability is the difference between the fair market value immediately before the loss less its salvage value immediately afterwards. See id.
- Loss of Use or Rental Value of Motor Vehicle
Plaintiff’s recovery for loss of use would be the reasonable time the owner is deprived of the use as the proximate and natural result of the damage to the vehicle. See Brandon v. Capital Transit Co., 71 A.2d 621 (D.C. App. 1950).
- Limitations on Damages
There is no cap for economic damages, non-economic damages or punitive damages in the District of Columbia.
- Emotional Distress
Emotional distress may be proven as an element of damages in a negligence action.
- Impairment of Future Wage Earning Capacity
In personal injury cases, District of Columbia courts consider lost wages and earnings suffered by the injured person from the time of injury to the time of trial as well as those lost wages and earnings reasonably certain to occur in the future.
- Attorney’s Fees
Generally, attorney’s fees are not recoverable against another party unless they are permitted by contract or statute. In tort litigation, each party is required to pay their own attorney’s fees regardless of the result of the litigation. Caution should be taken however with certain actions maintained under federal and state laws pertaining to discrimination as those particular statutes may have provisions which permit plaintiffs to seek attorney’s fees.
- Actions Against Insurers
When the insured must resort to litigation to enforce a liability carrier’s contractual duty to provide coverage for his/her potential liability to third persons, the insured is entitled to recovery of attorney’s fees and expenses incurred in that litigation. See Nolt v. U.S. Fidelity and Guaranty Co., 329 Md. 52, 617 A.2d 578 (1993); Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975); Cohen v. American Home Assur. Co., 255 Md. 334, 258 A.2d 225 (1969); American Continental Ins. Co. v. Pooya, 666 A.2d 1193 (D.C. 1995). However, the court has also held, in the context of a director’s and officer’s policy, that there is no recovery of attorney’s fees where the insurer denied coverage in good faith. See Collier v. MD-Individual Practice Ass’n, Inc., 327 Md. 1, 607 A.2d 537 (1992).
- Frivolous Actions or Pleadings
District of Columbia Superior Court Civil Procedure Rule 11 provides that sanctions may be awarded against a party and/or its attorneys if the court finds that any pleading, motion or other paper is presented to the court for any improper purpose, any frivolous reason or without reasonable information or belief as to the truth of the contents of the particular pleading or paper.
- Punitive Damages
Generally, the law of the District of Columbia disfavors punitive damages. In a negligence action, punitive damages may be awarded only when there is also a verdict assessing compensatory or other actual damages. See Franklin Investment Co., Inc. v. Smith, 383 A.2d 355 (D.C. 1978). Punitive damages generally are not awarded in contract actions. They are available, however, where the alleged breach of contract merges with and assumes the character of a willful tort. See Bragdon v. Twenty-Five Twelve Assocs. Ltd. Partnership, 856 A.2d 1165 (D.C. 2004).
- Standard of Proof – Actual Malice
To sustain an award of punitive damages, the plaintiff must prove, by clear and convincing evidence, that the tortfeasor acted with evil motive or actual malice. See Daka, Inc. v. Breiner, 711 A.2d 86 (D.C. 1998).
- Insurability of Punitive Damages
Public policy does not preclude insurance coverage for punitive damages.
VIII. INSURANCE COVERAGE IN DISTRICT OF COLUMBIA
- Mandatory Liability Coverage
All persons owning or operating motor vehicles within the District of Columbia are required to maintain personal liability insurance policies with coverages equal to or greater than $25,000 for any one person and up to $50,000 for any accident. Additionally, all motor vehicles are required to have insurance coverage for the payment of claims for property of others damaged or destroyed in an accident up to $10,000 per accident. See D.C. Code §§ 31-2403 and 31-2406.
- Uninsured Motorist Coverage
An uninsured motor vehicle is defined to include a vehicle that is not insured by an applicable motor vehicle liability policy; or a vehicle wherein the insurer denies coverage for the loss; or the owner or operator of the vehicle causing the damages cannot be identified.
All policies of insurance in the District of Columbia must contain uninsured motorist protection equal to or greater than the minimum amounts of $25,000 per person and $50,000 per accident for bodily injury or death and $5,000 per accident for property damage. See D.C. Code § 31-2406(f). Under insurance, which provides coverage up to the limits of uninsured motorist coverage where the wrongdoer’s liability coverage is less than the uninsured motorist’s limits, is optional. See D.C. Code § 31-2406(c-1).
- Uninsured Motorist Fund
A victim who sustains an injury from a motor vehicle accident who would not otherwise be compensated for his or her loss may make a claim against the Uninsured Motorist Fund subject to the following conditions:
- The accident must be reported to the Mayor within 45 days after the accident, except that this requirement may be waived for good cause. The District does not have to provide uninsured motorist coverage for vehicles it owns. See D.C. Code § 31-2408.01;
- The claim must be filed on a form supplied by the Mayor and submitted within 180 days after the accident (requirement may be extended if the victim is still undergoing medical treatment for injuries relating to the accident or for a good cause). See D.C. Code § 31-2408.01(b)(2);
- The victim suffered a loss of more than $100 as a result of the accident. See D.C. Code § 31-2408.01(b)(3); and
- All other identifiable insurers are financially unable to fulfill their obligations to compensate the victim. See D.C. Code § 31-2408.01(b)(4)
Attorney’s fees for claims brought against the Fund are limited to 10% of the
award or $1,000.00, whichever is less. See D.C. Code § 31-2408.01(f).
- Personal Injury Protection Coverage (“PIP”)
The purchase of no fault coverage in the form of Personal Injury Protection (PIP) is optional in the District of Columbia. Persons insured with PIP coverage may opt either to accept PIP benefits, with concomitant lawsuit restrictions, or to reject PIP benefits and proceed against the wrongdoer without regard to any lawsuit restriction. See D.C. Code § 31-2404.
- Optional PIP Coverage
- Insurers are required to offer optional PIP coverage as follows:
(1) Medical and rehabilitation expenses: Range of coverage: $50,000 to $100,000 for each victim. See D.C. Code § 31-2404(c)(5);
(2) Work Loss: Range of coverage: $12,000 to $24,000 per victim (In addition to lost time from regular employment, work loss includes expenses incurred as a result of the victims’ inability to perform services for personal or family benefit during the first 3 years after the date of the accident) See D.C. Code § 31-2404(d); and
(3) Funeral benefits: Actual costs up to $4,000. See D.C. Code § 31-2404(e).
- Election of PIP Benefits
Accident victims who are eligible for PIP coverage and wish to collect such benefits must notify the insurer providing such coverage within 60 days of the accident. Insurers who have coverage available are required to notify any identifiable victim in writing of the 60 day election. The 60 day election written word period may be extended upon the mutual written agreement of the victim and the insurer. See D.C. Code § 31-2405.
- Rejection of PIP Benefits
A victim who fails to elect to receive PIP benefits by filing the requisite notice automatically is entitled to seek compensation for all injuries and damages sustained by the proceeding against the wrongdoer pursuant to common law tort remedies. See D.C. Code § 31-2405.
- Time for Filing and Payment of Claims
In order of priority, the insurer liable to pay benefits is:
(1) The victim’s own PIP insurance carrier; or
(2) The insurance carrier providing coverage for the motor vehicle occupied by the victim at the time of the accident.
Where two or more insurance carriers are obligated to pay PIP on an equal basis, the carrier against whom the claim is first made shall process the claim and pay benefits as if wholly responsible with the right to seek contribution from other carriers at a later time. See D.C. Code § 31-2407.
- Penalty for Late Payment of PIP
PIP benefits are payable as loss accrues and must be paid within 30 days after receipt of reasonable proof of the fact and amount of the loss. See D.C. Code § 31-2410(c).
Attorney’s fees and interest are awardable in lawsuits seeking payment of overdue PIP benefits. See id. § 31-2410(e).
- Lawsuit Restriction
Victims who elect to receive PIP benefits are precluded from maintaining a civil action based upon liability of their wrongdoer unless the victim is able to satisfy one of the following criteria listed in D.C. Code Section 31-2405(b). The criteria are as follows:
- The injury directly results in substantial permanent scarring or disfigurement;
- The injury directly results in substantial and medically demonstrable permanent impairment that has significantly affected the ability of the victim to perform professional activities or usual and customary daily activities;
- The injury directly results in a medically demonstrable impairment that prevents the victim from performing all or substantially all of the material acts and duties that constitute his or her usual and customary daily activities for more than 180 continuous days; or
- The medical and rehabilitation expenses of a victim or work loss of a victim exceeds the amount of PIP benefits available.
If PIP is not elected, there are no lawsuit restrictions. The District of Columbia’s interpretation of the No-Fault Act (PIP) is set out in the case of Musa v. Continental Insurance Co., 644 A.2d 999 (D.C. 1994). Note: The D.C. PIP statute has not significantly reduced third party claims.
An insurer who pays PIP benefits has a right of subrogation against another insurer, based on a determination of fault involving 2 or more vehicles, one of which is not a passenger motor vehicle. See D.C. Code § 31-2411(d).
Unless the document specifically provides for release of all tortfeasors, a release discharges the obligations of only the party to the release. See Noonan v. Williams, 686 A.2d 237 (D.C. 1996); McKenna v. Austin, 134 F.2d 659, 77 U.S. App. D.C. 228 (1943). The effect of a release of a joint tortfeasor is ordinarily a question of fact dependent on two inquiries: 1) did the plaintiff intend to release all wrongdoers or only the particular party named in the release; and (2) did the amount settled for fully compensate the plaintiff, or was it taken merely as the best obtainable compromise for the settler’s liability. See McKenna, supra.
The guardian or fiduciary of a minor is eligible to bring suit and settle an action on behalf of the minor, however, the settlement is not valid unless it is approved by a judge of the court in which the action is pending. See D.C. Code § 21-120. If the net value of the money and property due to the minor exceeds $3,000, no person may receive the money or property on behalf of the minor until he is appointed guardian of the estate of the minor to receive the money or property by a court of competent jurisdiction. See id.
- Offer of Judgment
The District of Columbia follows the Federal Rules of Civil Procedure regarding offers of judgment. District of Columbia Superior Court Civil Procedure Rule 68 provides that if an offer of judgment is made and rejected by the offeree, and the judgment finally obtained is not more favorable than the offer, the offeree must pay the costs incurred by the offerer after the offer was made. F.R.C.P. 68.