UIM claim results in an award less than settlement in underlying matter. Orange County.


Arbitrator says plaintiff already received enough insurance compensation, no UIM award due.

The Case

  • Case Name: Kratter v. Safeco Insurance
  • Date of Arbitration Award : Thursday, January 22, 2015
  • Type of Case: Underinsured Motorist
  • Judge or Arbitrator(s): Hon. Robert Polis (Ret.)
  • Plaintiffs:
    Mark Kratter, screenwriter
  • Defendants:
    Safeco Insurance Company (claimant's insurer)
  • Type of Result: Arbitration Award

The Result

  • Award as to each Defendant:

    Judge Polis awarded total damages of $95,802. Since the award was less than the amounts received in claimant's settlement with the underinsured motorist, the net award was zero damages, less than Safeco's $5,000 CCP 998 offer.

  • Trial or Arbitration Time: 2 days

The Attorneys

  • Attorney for the Plaintiff:

    Gibson & Hughes by Robert Gibson, Santa Ana.

  • Attorney for the Defendant:

    Demler, Armstrong & Rowland, LLP by Robert W. Armstrong, Long Beach.

The Experts

  • Plaintiff’s Medical Expert(s):

    Khawar Siddique, M.D., orthopedic surgery, Pasadena.

  • Defendant's Medical Expert(s):

    Geoffrey Miller, M.D., orthopedic surgery.

    Neil Chafetz, M.D., radiology, San Pedro.


  • Defendant's Technical Expert(s):

    Judson Welcher, biomechanics, Long Beach.

Facts and Background

  • Facts and Background:

    Claimant was rear-ended at the intersection of Westwood Boulevard and Kinross in Westwood. He claimed that the accident aggravated a pre-existing back condition, resulting in a microdiscectomy and the need for a future fusion surgery. Claimant settled his claim against the driver who rear-ended him for the policy limits of the driver's $100,000 insurance policy with Mercury Insurance. Claimant then brought an underinsured motorist claim against his own carrier.

  • Plaintiff's Contentions:

    That the accident caused an aggravation of his pre-existing back condition and that he also sustained a whiplash injury.

  • Defendant's Contentions:

    That the forces of the accident were not sufficient to cause an aggravation of claimant's pre-existing back condition and that his $100,000 settlement with Mercury had fully compensated him for all damages that resulted from the collision.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Aggravation of a pre-existing back condition that resulted in a microdiscectomy and would require a future back surgery and lumbar fusion.

Demands and Offers

  • Plaintiff Final Demand before Trial: $100,000
  • Defendant §998 Offer: $5,000

Additional Notes

The parties stipulated the the "Howell number" for present medical expenses amounted to $24,000. Claimant did not claim wage loss, but did claim the cost of his future back fusion. He requested an award in the amount of $250,000.

Judge Polis found that the collision was sufficient to cause an aggravation of claimant's existing back problems and awarded damages for the microdiscectomy. However, he also determined that the accident was not a substantial factor in causing the need for future back surgery and a lumbar fusion.