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When in doubt, refer it out

The Court of Appeals issued an opinion last month in the consolidated cases of Woznicki v. Geico and Morse v. Erie Insurance Exchange. These cases involved the multi-step dance that a plaintiff’s lawyer has to do with insurers in Maryland when settling a case against a tortfeasor while preserving the plaintiff’s right to pursue benefits under his or her underinsured motorist coverage. In each case, the plaintiff’s lawyer failed to follow the steps set forth in the relevant Maryland statute, leading the insurer in each case to disclaim coverage.

It seems that a contributing factor to the plaintiffs’ lawyers’ missteps in these cases was the fact that they were Delaware lawyers, not Maryland lawyers, representing Delaware residents for accidents that happened in Maryland. They were able to negotiate settlements for policy limits on the underlying cases against the tortfeasors but failed to obtain the consent of the underinsured motorist carriers before accepting those settlements. Apparently in Delaware this isn’t required, or at least it isn’t as formal of a process. I hate to be overly critical of these two lawyers, because I don’t know the whole situation, but this seems like a problem that could have been solved by a five-minute phone call to a Maryland lawyer who regularly handles motor tort cases.

The lesson: Be careful if you get involved in an out-of-state case. Assuming that you’ve concluded that your pre-suit activity on a case in another state does not constitute the unauthorized practice of law in that state (you’ve thought about that, right?), you also need to consider whether there are unique substantive laws or procedural requirements that differ from your home state. Most of us are smart enough to at least look up the statute of limitations in the foreign state, but the inquiry shouldn’t stop there. Consider the case from all angles.

As I’ve suggested elsewhere, don’t be afraid to reach out to other lawyers with questions. There have been times when I’ve needed to accomplish something in another state and wasn’t quite sure whether I could do it myself without involving a lawyer in the other state or just needed reassurance that I was going about things properly. I put my mind at ease by calling that state’s trial lawyers association, explaining that I was a Maryland lawyer with a question about that state’s law, and asking to be put in touch with someone who could help. Each time I’ve been put in contact with a veteran lawyer who was able to set me straight within minutes. (If I were truly smart, I would have kept in touch with those lawyers from time to time. This is not my forte.)

When in doubt, refer it out. If the case isn’t worth the time you will spend researching the nuances of a foreign state, refer it to a lawyer in that state and move on to the next case. You’ll be doing the right thing for the client and expanding your professional network while you’re at it.

Ask for help. It’s that easy. Why take the chance of getting it wrong?

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