Pre-Existing Conditions Affirmed, No Additional Recovery Earned

Claims Alleged: Automobile Accident; Personal Injury

Injury Alleged: Numerous – Read on to Find Out

Amount Claimed: $50,000

The Background

The claimant in this case was stopped at a red light on Southeast 82^nd Avenue in Portland, Oregon when another driver (the tortfeasor) failed to stop and rear-ended her vehicle. The tortfeasor’s insurer settled with the claimant for $25,000. Smith Freed Eberhard defended the claimant’s insurer in this matter, who also paid the claimant around $13,000 in PIP medical benefits and $3,000 in PIP wage benefits.

A month later, the claimant demanded an additional $50,000 from her insurer stating that she was still experiencing difficulties with most of her day-to-day activities. She complained of back pain, neck pain, post-concussion syndrome, loss of taste, dizziness, loss of memory, and sensitivity to light. Based on her UIM (Underinsured Motorist) maximum benefits of $50,000, and previous settlement with the tortfeasor’s insurer for $25,000, the claimant’s recovery was limited to a maximum amount of $25,000. The claimant refused to settle for anything below $25,000, so the case went to arbitration.

The Strategy

In order for the claimant to receive a monetary award, the arbitrators would have had to find that her injury was worth more than what she already received from both the tortfeasor’s insurer and her insurer. This included the underlying settlement and PIP benefits, all of which totaled around $41,000.

In arbitration, the defense would prove to the arbitrators that the claimant had pre-existing conditions and the accident at issue was not the cause of all of her complaints. Smith Freed Eberhard asked a neurologist expert to testify live before the panel. The expert stated that some of the claimant’s treatments, such as MRIs and eye treatments, were not medically necessary, nor did they relate to the accident in question. The claimant complained of headaches and memory loss and, according to the expert, would have been caused by a moderate to severe head injury, which the claimant did not sustain. Additionally, after reviewing her medical records, it was found that the claimant was experiencing many of the same symptoms that she already had prior to the accident.

The Outcome

In the end, the arbitrators awarded her only $31,000, sending her walking with no additional recovery, and leaving Smith Freed Eberhard with another thrilled client.