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.