In August 2016, plaintiff B. was driving on a two lane road in Mill Valley. While in the process of making a left turn into a driveway, B. was struck by a hit-and-run driver who attempted to pass her vehicle on the left. The hit-and-run driver struck B.’s vehicle at the front driver-side wheel well, and sped away without stopping. B.’s vehicle was rendered inoperable.
Plaintiff B. made a claim with her insurer, Liberty Mutual, under her uninsured motorist policy with a limit of $1 million.
Liberty Mutual did not contest coverage nor that the hit-and-run driver was the sole cause of the crash.
Lumbar Disc Herniation and Radiculopathy; Neck; Headaches;
Plaintiff B. claimed injury to her neck, head, and lumbar spine as a result of the crash. B. had previously been rear-ended and undergone lumbar spine surgery 3 years earlier. B. claimed that her prior symptoms of radiculopathy and foot drop were completely resolved by the surgery. B. sought medical treatment within two weeks for neck pain and headache, which resolved over time. As her head and neck injuries resolved, B.’s lumbar spine symptoms began to progressively worsen. B. obtained an MRI 4 months post-crash, which was positive for disc herniation. B. was evaluated and surgery recommended in March 2017. B. attempted to treat conservatively to postpone lumbar spine surgery, but her symptoms progressed to include foot drop. B. obtained a second opinion in March 2019 and was recommended to receive an anterior lumbar spine fusion.
Liberty Mutual asserted that due to plaintiff’s prior motor vehicle accident and lumbar spine surgery, the speed and angle of impact, the lack of treatment in the months following the crash, and complaints predating the crash, her need for lumbar spine surgery was not a result of the crash, but rather a failure of her prior surgery and natural degenerative progression.
Plaintiff B. claimed that following surgery she would be unable to continue in her employment. Liberty Mutual claimed that because B. continued to work following the crash, she would be able to continue to work following the surgery and would suffer no loss in earning capacity.
The arbitrator struck the testimony of defense expert orthopedic surgeon James L. Chen, M.D. after plaintiff’ B.’s counsel impeached him.
Liberty Mutual paid $1,134,961 to settle the claim.