Insurer claims over-treatment in UIM case. $712.5K. San Diego County.

Summary

Snap-on Tools route salesman says injuries in accident forced him to leave his occupation.

The Case

Case Name: Stephan, et al., v. Great American Insurance Co.
Court and Case Number: San Diego County Superior Court / A267098
Date of Arbitration Award : Friday, March 19, 2021
Type of Case: Underinsured Motorist
Judge or Arbitrator(s): Hon. Ronald S. Prager, Ret.
Plaintiffs:
Timothy Stephan
Defendants:
Great American Ins. Co.
Type of Result: Arbitration Award

The Result

Gross Verdict or Award: $712,500
Net Verdict or Award: $667,500 net award: $712,500 arbitration award, less $50,000 pre-arbitration settlement
Economic Damages:
Past medical expenses: $127,500

Past loss of earnings: $40,000

Future lost earnings: $125,000
Non-Economic Damages:
Past pain and suffering: $250,000

Future pain and suffering: $125,000

Loss of consortium for Cyndy Stephan:

Past and future: $50,000
Post Trial Motions & Post-Verdict Settlements: Plaintiff's counsel filed a cost bill for over $120,000 in costs.

The Attorneys

Attorney for the Plaintiff:
Law Offices of Otto L. Haselhoff, P.C. by Otto L. Haselhoff, Santa Monica.

Guy Levy Law by Guy Levy and Marianne Malek, San Diego.
Attorney for the Defendant:
Lewis Brisbois Bisgaard & Smith, LLP by Peter L. Garchie, James McDonald and Brett Miller, San Diego.

The Experts

Plaintiff’s Medical Expert(s):
Ronald Brizzie, DO, physical medicine and rehabilitation, Carlsbad.

Brook Feerick, R.N., life care planning, San Diego.

John Oliver Johnson, M.D., radiology, La Jolla.

Katherine Ann Nusbaum, R.N., medical examiner, San Diego.

Kevin C. Owsley, M.D., orthopedic surgery, Poway.

William Tontz, Jr., M.D., orthopedic surgery, San Diego.

Vik Udani, M.D., neurological surgery, San Diego.
Defendant's Medical Expert(s):
Howard Tung, M.D., neurological surgery, San Diego.
Plaintiff's Technical Expert(s):
Peter R. Francis, Ph.D., biomechanics, San Diego.

Catherine M. Graves, M.B.A., economics, Fullerton.

Stephen L. Plourd, accident reconstruction, San Diego.

Mark Remas, M.A., vocational rehabilitation, San Diego.
Defendant's Technical Expert(s):
Brian J. Bergmark, M.B.A., C.P.A., A.B.V., AS.A., economics, San Diego.

Facts and Background

Facts and Background:
On December 7, 2016, claimant parked his SnapOn Tools work truck in an alleyway and was inside his truck with the engine off when another vehicle struck the truck. Defendant driver later said he had mistakenly hit the gas rather than the brake just before the collision.

After the accident claimant left his job as a SnapOn Tools salesman and took on a swimming pool service route.
Plaintiff's Contentions:
Claimant claimed that the impact of the collision knocked him over and caused his toolbox to strike him on the left side of his body, causing injury.

Claimant's injuries compromised his ability to work and reduced the financial performance of his business and he still suffers back pain. His prior back surgery (consisting of a spinal fusion many years before) by a doctor that moved out of state (and did not testify) was a success and allowed him to live a normal life and work at his job.

Then, while working on December 7, 2016, and standing in his work truck he was struck by the underinsured motorist, jostled, and knocked into a cabinet. He experienced rapid onset of discomfort in his back. He sought out medical treatment with a doctor who was treating him for an unrelated knee injury. That doctor sent him to a spinal surgeon, Dr. Udani, who gave him injections, which provided some temporary but not long-lasting relief and ultimately resulted in a recommendation of surgery with a 50/50 shot of success. Claimant decided to undergo the surgery.

Following a microdiscectomy procedure, claimant acknowledged that he experienced a degree of benefit and an improvement to a degree, but claimed that it did not solve his problems and that he continued to have back issues when he lifted heavy tools as was required by his job.

As to excessive cost of treatment, plaintiff maintained that any bills in excess of what insurance would have paid were his choice to incur, because he had the right to treat outside his plan with a doctor of his choice.
Defendant's Contentions:
That claimant had a pre-existing spinal condition confirmed on MRI with a prior back surgery and no difference in his films pre and post this accident. He was exaggerating and did not need surgery, and his doctors conceded this.

To the extent the microdiscectomy following the December 7, 2016 accident was needed, it was a success, which undermined a future claim of pain and suffering and any effect on LOE.

That claimant was tired of working in the SnapOn Tools business and was using this claim as an excuse to stop working in that business. There was no difference between his pre-accident and his post-accident earnings, and all of his claims were "trumped up."

Injuries and Other Damages

Physical Injuries claimed by Plaintiff:
Claimant suffered injury to his lower back, resulting in severe left-leg pain and weakness extending from his left sciatica into his left foot. He was treated with physical therapy, microdiscectomy on an outpatient basis, and nerve blocks before undergoing spinal surgery a year later to relieve his severely compressed nerves in his spine.
Loss of earnings from his business.

Special Damages

Special Damages Claimed - Past Medical: $100,000

Demands and Offers

Plaintiff Final Demand before Trial: $1 Million UIM limits, less $50,000 paid by underlying under-insured motorist.
Defendant Final Offer before Trial: $188,000

Additional Notes

The defense compared tax returns and earnings reports in an attempt to show that there was no factual basis to an LOE claim. The defense also placed the claimant under video surveillance, searched all of his social media, hired investigators to create a "book" on him showing that he still went on vacation and lived a full life. Defense argued that this too undermined claims that his life was negatively affected. Also, defense claimed that there was no reason for the claimant to treat on a lien when he had health insurance and, had he treated through his health insurance plan, the charges for the microdiscectomy would have been much less, perhaps $10,000 instead of almost $100,000. Also, that the replacement occupation for Mr. Stephan, as a swimming pool service man as opposed to a SnapOn Tools salesperson, involved similar levels of actively lifting, undermining the suggestion that he would be unable to have pursued his prior vocation as a SnapOn Tools salesperson, and that there was no decrease in earnings.

Claimants filed a Cost Memorandum of over $250,000, inclusive of over $100,000 in expert and deposition and other costs, plus prejudgment interest. Respondent moved to tax indicating that most of the charges, particularly for experts, were excessive, unnecessary and not recoverable by code since the C.C.P. 998 offer was not exceeded by the award issued by the Arbitrator. A confidential settlement was reached disposing of all claims between the parties prior to hearing by Judge Ronald Prager (Ret.).