$742K UIM arbitration award against Wesco Insurance Company. San Diego County.
Insurer argues that arbitration should not have proceeded due to plaintiff's failure to pursue workers' compensation claim and plaintiff's last-minute claims for future medical treatment.
- Case Name: Jason Pearce v. Wesco Insurance
- Court and Case Number: San Diego Superior Court / 37-2021-00044733-CU-PA-NC
- Date of Arbitration Award : Tuesday, October 05, 2021
- Date of Settlement: Wednesday, November 03, 2021
- Type of Case: DUI Accident, Underinsured Motorist, Vehicles - Auto vs. Auto, Vehicles - Intersection
- Judge or Arbitrator(s): Hon. Herbert Hoffman (Ret.)
Plaintiffs: Jason Pearce, Age 32
Defendants: Wesco Insurance Company
- Type of Result: Arbitration Award
- Gross Verdict or Award: $741,986.71
- Net Verdict or Award: $741,986.71
- Settlement Amount: $725,000
- Contributory/Comparative Negligence: None.
Past medical: $193,521.71
Future medical: $ 90,000
Past wage loss: $ 3,465
Future wage loss: $ 5,000
- Trial or Arbitration Time: 3 1/2 days
- Post Trial Motions & Post-Verdict Settlements: Settled for $725,000 while the petition to confirm award hearing was pending. Considerations included offsets for third party recovery of $15,000, personal auto policy UIM recovery of $35,000, costs of suit of $30,000, and Wesco's workers comp offset claims.
Attorney for the Plaintiff:
Kohn Law Office by Russell S. Kohn, Oceanside.
Skolnick Law, APLC by Suzanne Skolnick, Oceanside.
Attorney for the Defendant:
Resnick & Louis, P.C. by William Zulch, Irvine.
Plaintiff’s Medical Expert(s):
Kyle Tetz, DC, chiropractic. (Treater.)
Yogesh Patel, M.D., pain management. (Treater.)
Payem Moazzaz, M.D., orthopedic spine surgery. (Treater.)
Michael Muldoon, M.D., orthopedic hip surgery. (Treater.)
Defendant's Medical Expert(s):
Howard Tung, M.D., neurosurgery.
Richard Richley, M.D., orthopedic surgery.
Facts and Background
Facts and Background:
This incident involved a severe T-bone crash on March 13, 2019 caused by an underinsured motorist, who, while driving drunk, ran a red light at a speed of approximately 50 mph on eastbound Oceanside Boulevard at Crouch Street in Oceanside. The underinsured motorist’s vehicle violently crashed into the passenger side of the pick-up truck driven by claimant, which was making a left turn on a green turn arrow from westbound Oceanside Boulevard to southbound Crouch Street.
Wesco Insurance Company did not dispute the liability of the underinsured motorist for this collision, but only the nature and extent of the injuries and damages. At the time of the crash, claimant was a healthy 32-year-old construction superintendent who was on his way home from work.
Both vehicles involved were declared total losses.
That the crash caused neck and back herniations as well as a hip labral tear and shoulder impingement, all of which would require surgery. Claimant did undergo an L5-S1 lumbar discectomy and fusion surgery on November 6, 2020, performed by Dr. Moazzaz, before the arbitration hearing.
Claimant also underwent extensive chiropractic treatment from Dr. Tetz as well as cervical and lumbar epidural injection by Dr. Patel. His hip injury was evaluated by Dr. Muldoon.
Claimant contended that Wesco was incorrect both as to the facts and its legal contentions concerning Pearce's right to claim past-paid medical bills and past-wage loss incurred.
That the arbitration should not have proceeded because Wesco was entitled to a stay while claimant pursued worker’s compensation benefits and because Wesco was entitled to have claimant examined by an orthopedic surgeon because of his last-minute surprise contentions of the need for additional surgeries. Claimant made an excellent recovery from his back surgery at L5-S1, with only ibuprofen for pain and returned to work full time.
Claimant never proved he needed low back surgery to L4-5. Claimant never proved he needed neck surgery. Claimant never proved he needed surgery to his right shoulder. Claimant surprised Wesco with a last-minute opinion by Dr. Muldoon that claimant needed hip surgery and the arbitrator refused to let Dr. Richly examine claimant.
Wesco agreed with the arbitrator that claimant was entitled only to loss of earnings of $3,465 because he was paid by his employer. Claimant was not entitled to future loss of earnings because he continued to work full time after the accident. Offsets should apply for worker’s compensation benefits to which claimant was entitled and for the $50,000 he already received.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
4mm disc extrusion at C5-C6 abutting the cord; 4-5mm disc protrusion at L5-S1; tear of the anterior-superior labrum of the right hip; persistent right shoulder pain.
- Special Damages Claimed - Past Medical: $193,521.71
- Special Damages Claimed - Future Medical: $392,531.51
- Special Damages Claimed - Past Lost Earnings: $32,298
- Special Damages Claimed - Future Lost Earnings: $41,526
Claimant demanded the $985,000 policy limit. Wesco first offered $25,000, then increased to $100,000 after back surgery.
Shortly before the arbitration hearing, Wesco increased its offer to $200,000 after claimant served a CCP 998 offer of $700,000. In light of new information received, Wesco then increased its offer to $300,000 if accepted before the start of the hearing.
A month before the arbitration hearing, Wesco moved to stay the arbitration hearing until claimant filed and resolved a workers' compensation claim. Wesco asserted that claimant was a qualified injured worker because he was driving a company-owned truck home, and thus was required by the Wesco policy to pursue a workers' compensation claim in order to determine offsets allowed under the underinsured motorist coverage. This motion was denied by the arbitrator.
During the arbitration hearing, Wesco claimed unfair surprise about claimant's hip injury claim and need for multiple surgeries, and moved for permission to retain a medical hip expert. This motion was granted by the arbitrator. Wesco then retained Dr. Richley, who testified that the hip condition was pre-existing and the crash could not have caused the labral tear.
The arbitrator did not apply offsets to determine the amount owed by the insurer, but rather only awarded the amount of damages caused by the underinsured motorist.
Claimant has filed a bad-faith lawsuit against Wesco Insurance Company and its parent company AmTrust Insurance.
Per defense counsel:
The arbitrator stated: “The arbitrator does not decide whether or not Wesco’s policy provides for a workers' compensation offset and that issue is reserved for decision by the Superior Court.”
The arbitrator also stated: “Wesco is probably correct that Pearce would have been entitled to receive workers' compensation benefits for his injuries”. Insurance Code section 11580.2 provides for offsets for workers’ compensation benefits and a stay of arbitration pending workers' comp proceedings.