Policy Limit Demand Leads to Zero Dollar Award at UIM Arbitration
In August 2021, Douglas Carasso successfully defended an insurance company at binding arbitration in an underinsured-motorist action brought by the driver of the middle car in a three-vehicle chain-reaction freeway accident. Claimant alleged soft-tissue injuries to his back, neck, and shoulder, and then, most significantly, traumatic brain injury causing mental impairments continuing over six years and beyond after the 2015 subject accident. Claimant’s TBI claim followed his seeing neurologists and psychiatrists who documents that Claimant had suffered a TBI as a result of the motor-vehicle accident.
The case had originally been handled by insurance company counsel, while Claimant’s counsel was demanding no less than the full $300,000 policy limits less the $15,000 already recovered by the Claimant from the at-fault driver who vehicle had rear-ended his. Going into the binding arbitration, Claimant continued the full policy limits.
At arbitration, Claimant presented lien-based past medical charges of $54,967.50, an expert-based claim of future neuropsychological therapy charges at $105,000, past pain and suffering at $471,200, future pain and suffering at $1,681,920, and thus a total-damages claim of $2,313,087.50. Based on these numbers, Claimant demanded the available amounts under the full $300,000 policy limit, while also threatening that after this recovery Claimant would sue the insurance company for bad faith.
Mr. Carasso argued that Claimant had overstated, exaggerated, and contradicted himself in his injury and damages claims, including that he suffered a TBI and yet was able to recall many details before, during, and after the accident and further that he promptly returned and maintained for years a mentally demanding job. Mr. Carasso also effectively cross-examined Claimant’s neuropsychological expert by getting him to admit that the medical-record documentation of Claimant’s TBI diagnoses was based on Claimant’s self-reported subjective symptoms and no objective testing, and further that this expert’s testimony was contrary to the medical science on traumatic brain injuries as to their cause and duration. Mr. Carasso further presented the defense’s neuropsychological expert who had examined Claimant and effectively testified that Claimant never sustained any TBI in the accident.
In addition, Mr. Carasso presented the police report and biomechanical-expert analysis asa to how minor the impact was and so was unlikely to cause anything more than transient soft-tissue injuries. Persuasive live testimony was also presented by defense experts in the fields of neurology, radiology, and orthopedic surgery that limited Claimant’s orthopedic-injury claims and refuted his TBI claims, including by showing that the only actual treatment Claimant received was chiropractic and that he never received any mental-health care or treatment. Mr. Carasso argued that this failure to obtain treatment was a failure to mitigate.
Mr. Carasso present experts in the fields of neurology and radiology who capably refuted Claimant’s TBI-injury contentions, including his coup-contrecoup claim, based on their testimony that the medical records and films were all contrary to such a claim. A further effective way that Mr. Carasso pointed out that Claimant did not sustain a TBI was by highlighting both in cross-examining Claimant and in presenting the defenses’s neurology expert’s testimony that Claimant still has a clear recollection of the before, during, and after of the accident, devoid of any anterograde or retrograde amnesia, a telltale sign of TBI.
Ultimately, Mr. Carasso argued that Claimant did not sustain any traumatic brain injury and thus Claimant had failed to meet his burden of proof. The arbitrator agreed with the defense and issued a zero-award to Claimant, finding that while it may be a “possibility” that Claimant had sustained a TBI, Claimant failed to meet his burden of proof by a preponderance of the evidence that any of Claimant’s injury claims was the result of the subject accident. The arbitration award of zero dollar was thus $2,313,087.50 less than Claimant’s counsel’s demand for a finding in this amount, and so it prevented Claimant from pursuing any relief in a long-threatened subsequent action against the insurance company.
Read MoreAggravation of Spinal Injury Award is a Fraction of Claimant’s Demand
On January 21,2021, Michael Cody and associate Michele Spencer obtained a successful binding arbitration award in a very contentious uninsured motorist claim. The claimant was a 55-year-old woman with significant pre-existing low back pain, radiculopthy, nerve compression and spinal stenosis. She claimed that she was injured when she was the front seat passenger in a vehicle being driven by her husband that was rear-ended by the underinsured driver.
Claimant had multiple prior accidents, including a slip and fall and other automobile accidents for which she received medical care for low back issues. Just month before the accident at issue, she sought out consultation and treatment with a neurologist because her pain, weakness and nerve symptoms had gotten so severe that she couldn’t stand or walk for more than 10 minutes at a time. She underwent nerve conduction studies and has an MRI of her lumbar spine. Her neurologist informed her she had some long-standing, likely irreversible, nerve damage in her lumbar spine, and she referred claimant for epidural steroid injections. Claimant had one lumbar spine epidural injection just 3 months prior to the subject accident.
After the subject accident, claimant complained of a severe increase in her symptoms, telling her treating neurologist that prior to the accident she had been “80% better”. Claimant’s neurologist repeated nerve conduction studies that had been done 5 months prior and ordered a repeat MRI of her lumber spine. Her neurologist testified that the EMG/NCV tests revealed “new injuries” that weren’t present on the prior test. She referred a claimant for pain management and physical therapy.
Claimant underwent 5 lumbar epidural steroid injections over the next couple years before ultimately being referred to a neurosurgeon for consultation. Claimant underwent lumbar decompression and microdiscectomy at L4/L5 4 years after the subject accident.
At arbitration, claimant argued that she was an eggshell claimant, and experienced a severe exacerbation of her pre-existing condition, which she claimed had been 80% better just before the accident. Claimant argued that the post-accident MRI showed that her lumbar spine condition worsened, When compared to the MRI taken a few months prior to the subject accident.
She argued that she was never told she was a surgical candidate before the subject accident, and that the accident caused her significant increased symptoms of warranting multiple epidural injections and eventually surgery.
Mr. Cody and Ms. Spencer argued on behalf of the insurance carrier that claimant did not sustain any significant injury as a result of the accident, other than soft tissue strains. Experts opined at the arbitration that claimant needed lumbar spine surgery prior to the accident, and that her need for surgery was not caused by or hastened by the accident. Moreover, the defense team was able to establish that the post-accident increase in symptoms was actually the result of a cyst in claimant’s spinal column that was not present on the pre-accident MRI, but was clearly present on the post-accident MRI. It was argued that the cyst was the result of pre-existing degenerative disc disease and facet arthropathy, not the result of any trauma from the accident.
Claimant received $50,000 from the underinsured motorist’ insurance carrier. She present a claim for the remainder of her $500,000 UIM policy limits ($450,000) from her own carrier together with the demand for arbitration. Throughout the pendency of the claim, claimant refused to come off her policy limits demand, even at a mediation session that was held in an effort to avoid submitting the matter to arbitration. Prior to arbitration, the underinsured motorist insurance carrier offered $100,000, which was rejected. After 2 days of testimony and submission of evidence at the arbitration hearing, claimant requested an award of $929,000. The arbitrator awarded claimant $150,000 – only slightly more than the pre-arbitration.
Read MoreLos Angeles Office is Officially Open
Top Insurance Defense Firm Opens Los Angeles Office
Irvine, California. (January 2021) – Macdonald & Cody, LLP is excited to announce the opening of their new Los Angeles office on February 1, 2021. Located at 500 S. Grand Avenue, Suite 1400, this merger with Inglis & Gower, LLP will establish Macdonald & Cody’s downtown Los Angeles presence, expanding the extensive breadth of knowledge and experience handling the following types of cases: bodily injury, property damage, commercial, homeowners, and personal liability defense.
Joining the Macdonald & Cody team are Partner Richard Gower and senior attorneys Gregory Bramlage and Christian Przybylowski along with an incredible support staff who have been together for years.
Macdonald & Cody, LLP was founded in 2016 with 3 attorneys with the mission to provide effective, efficient, and creative legal representation for their clients. Today, they have offices in Irvine, Riverside and now Los Angeles with over 30 attorneys.
The team has extensive experience with various litigation matters. They bring each client a combination of industry knowledge and expert perspectives to offer fresh defenses and breakthrough legal insights.
Read MorePlaintiffs Accept Settlement Offer 12% of Demand After 4.5 Years of Litigation
On January 20th, 2021, Debra Braasch and co-counsel, settled a case for for $3,750,000 following a 998, policy limits demand of $31,000,000 from which plaintiffs refused to budge and steadfastly claimed was the value of this case for more than 3 years. The case involved a pregnant woman who was involved in an accident with an 80,000-pound dump truck. Although pregnancy was intact after the accident, the child was born prematurely at 26 weeks. The adult plaintiff claimed a broken hand and neck and back injuries which were treated with epidural injections and physical therapy. Surgery was recommended for her low back. The mother’s economic and non-economic damages were opined to be in excess of $6,000,000. Plaintiffs claimed that the child’s premature birth and all attending problems were caused by the accident and the stress the mother suffered as a result of the accident. They also claimed that during the accident, the fetus suffered a significant brain malformation/brain injury to the corpus callosum resulting in seizures and developmental delays. The child’s medical expenses were in excess of $2,500,000, his life care plan, which included assisted living, was between $9,200,000 and $21,000,000 and his economic damages were calculated at $29,000,000. Defendants denied that mom needed back surgery, denied that the child suffered any type of brain injury as a result of the accident and denied that his premature birth was caused by the subject. The depositions the defense took of the mother’s OB/GYN and plaintiffs’ experts ended up being quite helpful for the defense. At mediation with Janet Fields and on the eve of trial, the plaintiffs increased their settlement demand to $45,000,000. Several days later, they finally agreed to accept $3,750,000 in full and final settlement of all claims, which is approximately 12% of their 3-year-old, $31,000,000 policy limits demand and 7% of their $51,000,000 total damages evaluation.
Read MoreMacdonald & Cody Sponsors 12th Annual ALS Golf Classic
For more information about this foundation or how to participate in this event, visit the ALS Association.
Read MoreSuccessful Anti-SLAPP Motion Removes Defendant from Case
On December 18, 2020, Esther Choe of Macdonald & Cody, LLP obtained a favorable ruling in Orange County, granting Defendant’s anti-SLAPP motion and striking Plaintiffs’ entire unlimited complaint for malicious prosecution against Defendant.
Defendant claimed to be the victim of fraud and manipulation by her business partners and friends as well as the attorneys that represented them. She turned to the Court to redress the wrongs committed against her, but she was only partially successful. Her former business partners were dismissed from her lawsuit and then filed a malicious prosecution action against her, seeking over $150,000.00 in general damages as well as punitive damages.
Esther Choe filed an anti-SLAPP motion to strike Plaintiffs’ complaint against Defendant. After extensive briefing and oral argument the Court issued its ruling in favor of Defendant, granting Defendant’s anti-SLAPP motion, denying Plaintiffs’ request for attorney’s fees and costs, and allowing Defendant to file a motion for attorney’s fees and costs against Plaintiffs.
Read MoreDefense Verdict Secured on a Cyclist Versus Automobile Case
November 2020, Nadin S. Said secured a defense verdict in Orange County. The accident occurred at the intersection of Lemon and Orangethorpe in Fullerton, California. The Plaintiff was a 60 year old bicyclist who was riding her bicycle against traffic on the sidewalk. As she approached the intersection, she claimed the pedestrian cross signal turned green and rode her bicycle into the roadway. Defendant was driving an SUV, intending to turn right on a red light at the intersection. Defendant’s car allegedly impacted Plaintiff. Plaintiff experienced a tibia plateau fracture that required 10 days hospitalization, subsequent hospitalizations due to infections in the surgical wounds and a subsequent surgery to remove the hardware installed in her left leg. Plaintiff retained an orthopedic expert who testified Plaintiff would need a total knee replacement due to the accident, costing $60-80,000.00. Defendant only retained an accident reconstruction expert.
Prior to trial, Plaintiff demanded $100,000. Defendant offered $50,000.00.
At trial, Plaintiff counsel sought approximately $500,000 with some comparative on Plaintiff for riding the wrong way. The jury found Defendant was not negligent.
Read MoreBicyclist v. SUV- Defense Verdict
November 2020, Nadin S. Said secured a defense verdict in Orange County. The accident occurred at the intersection of Lemon and Orangethorpe in Fullerton, California. The Plaintiff was a 60 year old bicyclist who was riding her bicycle against traffic on the sidewalk. As she approached the intersection, she claimed the pedestrian cross signal turned green and rode her bicycle into the roadway. Defendant was driving an SUV, intending to turn right on a red light at the intersection. Defendant’s car allegedly impacted Plaintiff. Plaintiff experienced a tibia plateau fracture that required 10 days hospitalization, subsequent hospitalizations due to infections in the surgical wounds and a subsequent surgery to remove the hardware installed in her left leg. Plaintiff retained an orthopedic expert who testified Plaintiff would need a total knee replacement due to the accident, costing $60-80,000.00. Defendant only retained an accident reconstruction expert.
Prior to trial, Plaintiff demanded $100,000. Defendant offered $50,000.00.
At trial, Plaintiff counsel sought approximately $500,000 with some comparative on Plaintiff for riding the wrong way. The jury found Defendant was not negligent.
Read MoreASCDC Members Contribute to City of Hope Foundation
As a member of the Association of Southern California Defense Counsel, Macdonald & Cody, LLP has been able to make contributions to help fund City of Hope.
Proud Sponsor of the Federated Challenge
The team at Macdonald & Cody, LLP is pleased to be able to help contribute to organizations like, Big Brothers Big Sisters and their yearly event, Federated Challenge!
