In August 2016, plaintiff Baherian was driving on a two lane road in Mill Valley. While in the process of making a left turn into a driveway, Baherian was struck by a hit-and-run driver who attempted to pass her vehicle on the left. The hit-and-run driver struck Baherian’s vehicle at the front driver-side wheel well, and sped away without stopping. Baherian’s vehicle was rendered inoperable.
Plaintiff Baherian 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 Baherian claimed injury to her neck, head, and lumbar spine as a result of the crash. Baherian had previously been rear-ended and undergone lumbar spine surgery 3 years earlier. Baherian claimed that her prior symptoms of radiculopathy and foot drop were completely resolved by the surgery. Baherian sought medical treatment within two weeks for neck pain and headache, which resolved over time. As her head and neck injuries resolved, Baherian’s lumbar spine symptoms began to progressively worsen. Baherian obtained an MRI 4 months post-crash, which was positive for disc herniation. Baherian was evaluated and surgery recommended in March 2017. Baherian attempted to treat conservatively to postpone lumbar spine surgery, but her symptoms progressed to include foot drop. Baherian 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 Baherian claimed that following surgery she would be unable to continue in her employment. Liberty Mutual claimed that because Baherian 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’ Baherian’s counsel impeached him.
Liberty Mutual paid $1,134,961 to settle the claim.