The plaintiff was involved in a significant accident in which a Geico insured made a left turn into the plaintiff’s vehicle. Both vehicles were declared total losses. Geico tendered their insured’s $100,000 policy limits. Plaintiff filed suit against her own insurance company with a UIM Count for Breach of Contract and also a Bad Faith count. Judge Timothy Savage bifurcated and deferred the Bad Faith Count until the UIM Breach of Contract claim was resolved.
The plaintiff was a 40 year old, married mother of 3 children. As a result of the accident, she sustained significant bruising on her chest wall and knee, as well as severe swelling of her hands and burns on her arms from the air bags. Plaintiff’s diagnoses included cervical disc herniation at C5-6 with cervical radiculopathy and facet syndrome, right carpal tunnel syndrome, deQuervain’s syndrome, internal derangement of the left knee with posterior medial meniscal tear, and a left ankle ATF ligament strain. Plaintiff had multiple EMGs and MRIs confirming her diagnoses. Plaintiff underwent 5 years of treatment including physical/occupational therapy, injections, OMT, wrist splints, ankle braces and prescription pain medications. There was no evidence that Plaintiff received prior treatment for orthopedic problems other than a visit to her primary doctor for ankle pain in 2002 and back pain in 2004. Plaintiff’s orthopedic surgeon, Dr. Steven Valentino testified that Plaintiff required cervical surgery as well as carpal tunnel surgery, but she had not opted for these measures because she was afraid of severe Keloid formation of scar tissue she had incurred during her C-sections. Her treating physician, Dr. James Clarke testified that Plaintiff was permanently disabled and could not return to her full time job working 8 hours a day as a billing/collections specialist for her father’s medical practice and instead could only tolerate 5 hours of work per day. At the onset of the case, the plaintiff made a $40,000 wage loss claim that was still ongoing.
When the UIM claim was presented 2 and 1/2 years after accident, the insurance company conducted surveillance of the plaintiff for a number of hours after work. The video showed the plaintiff performing various activities with her children that included lifting, bending, stooping, etc. At her Statement Under Oath, Plaintiff had testified that she could not lift a gallon of milk or even carry a pocketbook without severe pain. During the course of discovery, the defense also learned that Plaintiff was still working 8 hours a day at her job, but was being paid “off the books.” Plaintiff dropped her wage loss claim and despite defense counsel’s objections, Judge Savage ruled that the defense was not allowed to question Plaintiff on her economic wage claim. On the other hand, Plaintiff and her physicians were still permitted to testify that Plaintiff was incapable of working 40 hours per week. During the course of the trial, the plaintiff’s employer testified that she had failed to turn over relevant wage information and shredded the documents because her daughter dropped the wage claim. Since the “cat was out of the bag,” the judge allowed questioning on the fact that the plaintiff had been getting paid under the table during the 5 years following the accident for additional time she was working in excess of the 5 hours. In closing, the defense argued that Plaintiff had made material misrepresentations of fact when submitting the claim to her insurance company, and that the plaintiff and her employer/family had destroyed and altered relevant employment and medical records. The defense presented the testimony of an orthopedic hand specialist and at the last minute decided not to play the video of their orthopedic surgeon regarding the neck, back, ankle and knee injuries.
The jury was instructed that the plaintiff had already received $100,000 from the tortfeasor’s insurance policy and it was their job to decide if the injuries and damages exceeded the $100,000 she already received. If so, they were to provide a dollar amount. The jury deliberated for approximately 1 hour and returned a verdict in favor of the insurance company.