Accidents
The at-fault driver survived. Your family member didn't. And under Maryland law, the defense is already building a story about what your loved one did wrong.
I know how brutal that sounds. But it's the reality I've seen play out in wrongful death cases across Maryland — and it's the reason why understanding what a fatal car accident lawyer does, and when, is so important for grieving families trying to figure out their next step.
This isn't a general overview of wrongful death law. It's an honest account of how these cases actually work, what I do from the moment a family calls me, and what can go wrong when families wait too long to get help.
When someone dies as a result of another driver's negligence, Maryland law provides two distinct legal claims that can be pursued simultaneously.
The first is the wrongful death action, which compensates the surviving family members — the spouse, children, or parents of the deceased — for their own losses. That means things like grief, loss of companionship, loss of parental guidance, loss of financial support, and the full weight of what life looks like without the person they lost.
The second is the survival action, which preserves the deceased person's own legal claim. It compensates the estate for what the deceased personally experienced before death — conscious pain and suffering during the survival period, medical expenses, and lost wages between the time of the crash and the time of death.
These are two separate claims with different measures of damages, different beneficiaries, and different strategic considerations. The survival action is filed by the personal representative of the decedent’s estate — which means opening an estate in the Orphans' Court in the county where your loved one lived is one of the first practical steps. The wrongful death action, by contrast, is brought on behalf of the surviving beneficiaries themselves: the spouse, children, or parents of the deceased.
Maryland's statute of limitations adds another layer of complexity that most families don't anticipate. In a straightforward fatal crash — where death occurs at the scene or shortly after — both claims generally carry a three-year limitations period running from the date of death. But when a victim survives the crash and dies later from their injuries, the survival action and the wrongful death action can have different triggering dates, because the survival action relates back to the date of the injury itself. Three years still sounds like a long time. It isn't — not when you're accounting for the investigation, expert retention, filing, discovery, and the very real risk that critical evidence disappears in the first weeks after a crash.
For a closer look at how Maryland's non-economic damages caps affect what families can recover, I've written about that in detail in this separate article on wrongful death damages and cap limitations.
Here is the thing I wish every family knew before they called me.
Maryland is one of the last states in the country that still applies pure contributory negligence. Under this rule, if the deceased was even one percent at fault for the crash — even one percent — the entire claim is barred. Your family recovers nothing, regardless of how reckless the other driver was.
Most families don't know this going in. And the defense absolutely does.
What makes this especially difficult in fatal crash cases is the evidentiary gap that no one talks about enough: the person best positioned to explain what happened isn't here to explain it. The deceased cannot sit in a deposition and describe the moments before impact. They cannot rebut a claim that they drifted into the wrong lane, ran a red light, or failed to yield. And defense counsel and insurance adjusters know this.
I handled a case not long ago involving a man killed in a highway crash. The at-fault driver rear-ended him at high speed. From where I stood, liability seemed clear. But once litigation began, the defense started floating a narrative — entirely unsupported — that the deceased had "cut off" the other driver just before impact. There were no independent witnesses at the scene. The defense's version was based on nothing more than the at-fault driver's own statement.
What saved that case was the vehicle's event data recorder. The EDR — sometimes called the black box — captured speed, braking, throttle input, and steering data in the seconds before impact. That data told a completely different story than the defendant's account. Combined with accident reconstruction opinions, we were able to demonstrate that the deceased had done nothing wrong, and we were able to defeat the contributory negligence defense entirely.
This is why I tell families: contributory negligence is the defense's most powerful weapon in Maryland wrongful death cases. But it's also an affirmative defense — which means the burden is on the defendant to prove it. Speculation and self-serving testimony don't satisfy that burden. The defendant must produce actual evidence. When we build a strong evidentiary record early, we take that weapon away from them.
When a family retains me after a fatal crash, my first priority is evidence preservation and retaining the experts who need to act fast.
Here's what that looks like in practice.
Spoliation letters go out immediately. I send written demands to the at-fault driver, their insurer, any commercial carrier involved, and any other relevant party, requiring them to preserve all vehicles, event data recorders, electronic logging devices, maintenance records, and any other potentially relevant materials. If a vehicle gets repaired, junked, or cleaned before we can inspect it, critical evidence is gone. EDR data can be overwritten. A spoliation letter creates a legal record of our demand and can support sanctions if evidence is later destroyed.
We move quickly on surveillance and dashcam footage. Most businesses and traffic cameras operate on rolling loops — footage is automatically overwritten anywhere from 24 hours to 30 days after it's recorded. If there's a camera at a nearby intersection, a gas station across the road, or a business in the area, we need to get a preservation request to that business before the footage disappears. I've had cases where we recovered footage that completely changed the picture of what happened — and cases where we were just a few days too late.
The accident reconstruction expert gets retained early. A qualified reconstructionist analyzes physical evidence — crush damage, skid marks, debris patterns, point of impact — along with electronic data to establish what each vehicle was doing in the moments before the crash. This expert is often the most important witness in a wrongful death case, and the quality of their analysis depends heavily on having access to the scene and the vehicles before conditions change.
We secure the police report, toxicology results, and 911 recordings. In cases involving impaired drivers, the toxicology report from the Office of the Chief Medical Examiner is critical. So is the 911 call — those recordings sometimes capture witness descriptions of the crash in real time, before anyone has had a chance to shape their account.
I say this not to overwhelm families who are in the middle of grief, but because I've seen what happens when months pass before anyone calls. Evidence gets lost. Witnesses become harder to find. The case that could have been clear becomes murkier. The earlier I can get involved, the better position your family is in from day one.
If the crash involved an impaired driver, a reckless driver, or conduct serious enough to support criminal charges, families often find themselves watching two parallel legal processes — a criminal prosecution and a civil wrongful death case — unfold at the same time. Understanding how those two tracks interact can make a significant difference in strategy.
The key distinction is the burden of proof. A criminal conviction requires proof beyond a reasonable doubt — the highest standard in our legal system. A civil wrongful death claim requires only a preponderance of the evidence, meaning it's more likely than not that the defendant was at fault. That's a meaningfully lower bar.
What this means practically: if the criminal case results in a conviction — say, a DUI manslaughter conviction — that conviction can be used in the civil case to establish certain facts through a legal doctrine called collateral estoppel. The defendant's intoxication and its causal connection to the crash may be treated as established, rather than something we have to re-prove from scratch. A conviction is a powerful asset in the civil case.
But here's what families often get wrong: a criminal acquittal does not kill the civil case. I've seen both sequences — civil cases that benefited from a prior conviction, and civil cases that succeeded even after a criminal acquittal. Because the standard of proof in the civil case is lower, we may still be able to establish liability even where the prosecution couldn't prove guilt beyond a reasonable doubt.
There's also a strategic advantage to letting the criminal prosecution run its course when timing allows. The police investigation, toxicology analysis, expert testimony, and any statements made by the defense during the criminal trial all become available for the civil case. In effect, the criminal prosecution can provide a thorough investigation that informs and strengthens our civil strategy — at no cost to the family.
The three-year statute of limitations still applies regardless. We never simply wait. But we do monitor the criminal proceedings closely and incorporate what we learn.
One of the first things I do on every fatal crash case — every single one — is a thorough coverage analysis. Because the first insurance policy that surfaces is frequently not the whole story.
Maryland requires drivers to carry minimum liability insurance of $30,000 per person and $60,000 per occurrence. In a wrongful death case, those limits are inadequate. And when a family hears that the at-fault driver "only has minimum coverage," the assumption is often that their options are limited. That's not always the case.
Here's what I look for.
The deceased's own uninsured/underinsured motorist coverage. Maryland requires every auto policy to include uninsured motorist coverage. If the at-fault driver's limits are insufficient — or if this was a hit-and-run — the deceased's own policy becomes a critical source of compensation. UIM coverage can bridge the gap between what the at-fault driver's insurer pays and the full value of the claim.
Enhanced UM/UIM coverage. Maryland offers two tiers of underinsured motorist coverage, and the difference matters enormously in a fatal crash case. With standard UIM coverage, the at-fault driver's liability limits are subtracted from the victim's UIM limits — so if the at-fault driver carries $30,000 in liability coverage and the deceased carried $100,000 in UIM coverage, the UIM insurer pays only $70,000, for a total recovery of $100,000. With enhanced UM/UIM coverage, the at-fault driver's liability payout doesn't reduce the UIM benefit at all — the victim's estate collects the full $30,000 from the tortfeasor and the full $100,000 from the UIM carrier, for a total of $130,000. In a wrongful death case where damages routinely exceed minimum policy limits, that distinction can mean tens or even hundreds of thousands of dollars in additional recovery for a surviving family. It's one of the first things I look for when I pull a policy.
Employer and commercial policies. If the at-fault driver was operating a vehicle in the course of employment, the employer's commercial auto policy — which often carries substantially higher limits than a personal policy — may be available. In commercial trucking cases, federal regulations require carriers to maintain minimum financial responsibility levels of $750,000 or more, and those cases frequently involve multiple layers of primary and excess coverage. I've written more about the commercial trucking liability landscape in this article.
Umbrella and excess policies. Personal umbrella policies can provide additional coverage above the at-fault driver's primary liability limits. These policies don't always surface immediately, which is why a formal coverage demand to the at-fault driver's insurer — requiring them to identify all available coverage — is an important early step.
The point is: there is frequently more insurance available than the first offer suggests. A thorough coverage analysis is not optional. It's how families avoid leaving significant compensation on the table.
Hit-and-run crashes and uninsured drivers create a different set of challenges, but they don't necessarily mean a family has no recourse.
In hit-and-run cases, the deceased's own UM policy, along with UM policies carried by other family members in the household, becomes the primary avenue for recovery. It is one more reason why conducting a complete coverage inventory at the outset of every case matters.
I want to be honest with families who are reading this and trying to understand what they're getting into.
A wrongful death case arising from a fatal car crash is not a quick process. From the time of the crash to final resolution, most cases take between one and four years — sometimes longer if the case proceeds to trial or involves appeals. The typical arc runs through investigation, filing, discovery (depositions, expert reports, document production), settlement negotiations, and potentially trial.
What I try to be throughout all of it is accessible and straightforward. Families in these situations have enough uncertainty to deal with. They shouldn't have to wonder whether their attorney is paying attention to their case. I'm always reachable. I'll tell you where things stand. I'll explain what's happening and why. And I'll fight hard at every stage — not just at the end.
If you've lost a family member in a car crash in Maryland and you're trying to understand what your options look like, I'm here to talk through it with you. There's no pressure and no obligation. Reach out to me at SG Legal Group and we can have a real conversation about what the process looks like for your specific situation.
Disclaimer: The information provided in this article is for general informational purposes only and does not constitute legal advice. Laws and regulations are subject to change, and individual circumstances vary. For advice specific to your situation, please consult with a qualified attorney.
Joshua C. Sussex, Esq.
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