UIM arbitration award of $100,000 against Mercury Insurance.

Facts and Background

• Facts and Background:

  This Uninsured Motorist Arbitration arose out of a collision that took place on February 15, 2012 wherein an uninsured motorist’s front of the vehicle struck claimant’s vehicle’s right side. The incident was investigated by the police immediately following the accident and the “hit and run” confirmed.

  Claimant, who had no prior history, sustained serious injuries and underwent various treatments, including therapy and three epidural injections to the spine. Respondent originally alleged that claimant's license plate had been photographed at the Mexico border returning to the United States and that preexisting yellow paint transfer had been found on claimant's vehicle. Based thereon, respondent refused to pay for claimant’s damages and only withdrew these assertions when they were proven false at the arbitration hearing.

• Plaintiff's Contentions:

  Claimant suffered serious and lasting injuries to his neck, shoulder, knee, and lower back. In addition to several conservative treatments, claimant also received a series of three epidural injections, which provided some relief. Nevertheless, claimant still had debilitating pain requiring lumbar fusion surgery to get permanent relief for his ongoing persistent lower-back pain.

  Respondent repeatedly attempted to taint claimant’s credibility by fabricating multiple scenarios without any credible evidence in an effort to deny claimant the coverage he was entitled to. After failed negotiations, a demand was made for UM Arbitration pursuant to the Insurance Code. For more than six years, respondent denied, delayed and accused claimant of being a fraudster, until all of respondent's accusation were proven false at the arbitration hearing. To settle the case, respondent only offered $4,000 to claimant.

  At the arbitration hearing, Mr. Von Esch, counsel for respondent, withdrew all of the red herring accusations continuously thrown at claimant for six years. Respondent withdrew the (1) false allegation of the Mexico trip; (2) with unproven NICB allegations; (3) blaming claimant for G & A body shop’s decision to park claimant’s van at the liquor store lot rented across the street; and (4) the baseless claims of pre-existing damage (i.e., yellow paint) to claimant’s van.  

   

• Defendant's Contentions:

  Initially the claimant driver and his two passengers were not cooperative. When they refused to appear for examinations under oath, Mercury informed them this was a material breach of the Policy’s Duties after Loss provision, which authorizes examinations under oath for persons seeking uninsured motorist coverage.  Eventually, the claimants retained a different lawyer and submitted to examinations under oath.

  The insured vehicle had yellow paint transfers along the area damaged in the collision incident. Laboratory analysis revealed this was architectural paint typically found on yellow posts, walls, etc. This paint did not come from the uninsured vehicle.

  Claimant took the insured vehicle to a body shop that did not have a license with the Bureau of Automotive Repairs. An investigation later revealed the shop lacked equipment required to make the repairs. The shop stored the insured vehicle offsite behind a liquor store. While the insured vehicle was in the body shop, US Custom’s License Plate Reader system photographed the insured vehicle’s license plate crossing the International Border at Mexico. 

  Both claimant passengers settled for $2,500 each before the uninsured motorist arbitration.

  Claimant passenger Arshak testified at examination under oath that he has been good friends with the claimant driver since approximately five years before the accident.  Arshak said claimant driver has complained about low back pain ever since he has known him. Arshak said he did not notice any difference in claimant driver’s complaints of low back pain after the accident. Conversely, claimant driver testified he had not had any low back discomfort or pain before the subject accident. This put claimant counsel in the dubious position of pitting the testimony of one client against the other client. At arbitration, Arshak was accused of having drug problems and being incarcerated.

  Claimant driver had an MRI not long after the accident, which revealed disc bulges in his lower back. These bulges were degenerative conditions that pre-existed the accident. 

  At all relevant times before and after the incident, claimant driver had medical insurance with Blue Cross / Medi-Cal. He never mentioned any back pain to his primary care physician or any other physician through his coverage. He had physical examination, which revealed no back pain, normal range of motion, no neurological deficits. He has had no medical evaluation or treatment with any health care providers for his back pain, other than the few months after the accident when he treated with the lien credit doctors arranged by his lawyer. His treatment included three epidural injections, which were administered over 1 1/2 months for a total of $17,000.  The defense doctor Milton Legome, M.D. said this treatment was unreasonable. 

  The only health care provider to examine the claimant driver regarding his current low back complaints was defense doctor Milton Legome. Dr. Legome found no orthopedic or neurological deficits. Dr. Legome found nothing that would require spinal surgery. The other doctor to suggest spinal surgery was a lien credit doctor who examined the claimant driver five years prior to arbitration. During that time lapse, claimant driver treated with primary care doctors for several other matters.  He never mentioned any back problems and none of the physical exams revealed any back problem.

  Claimant driver testified at arbitration that he cannot play and interact with his children and he cannot do household chores due to his back pain. There was nothing found on physical exam with the defense doctor or any of his primary care doctors to support his alleged limitations.  Claimant driver waived any claim for loss of earnings or loss of earning capacity.