Motor Vehicle v. Pedestrian Accident

Case Name: Withheld

County: Suffolk

Amount of Settlement: $1.75 million

Type of Action: Motor Vehicle v. Pedestrian

Counsel for Plaintiff: Darin M. Colucci, Esq., Colucci, Colucci, Marcus & Flavin, P.C.

Date: January 1, 2015

On December 9, 2010 the plaintiff was in his 22nd year of employment with the United States Postal Service. He was standing outside of his truck sorting mail when he was suddenly struck by a car traveling from his right.  As the car struck him it pushed him into the open truck door.  The damage was rather severe to both vehicles.  The defendant’s car, a 2012 Prius, was totaled while the plaintiff’s truck sustained significant damage to the door and quarter panel.  Miraculously, the plaintiff was not severely injured.  He was taken to the hospital but released later that day with 10 stitches in his thigh and generalized complaints of pain.  Within days, however, the plaintiff began complaining of significantly increased pain in his shoulders, knees and hips. Although all diagnostic tests were negative, no doctor seemed to question that the plaintiff was in significant pain.  After approximately 5 months of conservative treatment, doctors decided to do a debridement procedure on his left quadriceps laceration which had become infected.

After approximately 10 months the plaintiff was referred to an orthopedic surgeon who decided that his ongoing shoulder complaints warranted an arthroscopic procedure.  He was found to have a rotator cuff tear that was then repaired.  Thereafter, the plaintiff underwent different types of physical therapy for his shoulder, knees and low back.  In total, the plaintiff had amassed $54,000.00 in medical expenses.

As an employee of the federal government, the plaintiff was forced to undergo a medical examination at the request of the Department of Labor.  The Department of Labor’s choice of physician stated that he did not believe that the plaintiff could return to work as a letter carrier.

Plaintiff’s counsel conceded that as a high school graduate he had continued to have a certain earning potential, but argued that it was markedly less than he would have earned had he remained with the Postal Service. Plaintiff’s expert economist determined that as a result of losing his job, the plaintiff would likely lose approximately 1.34 million dollars, which represented the difference between what he would have earned had he continued with the Postal Service and what he would likely earn as a 44-year-old high school graduate. The information was submitted to defendant’s insurance carrier along with all medical documentation as part of a comprehensive demand package.  The insurer evaluated the information and made an initial offer of $290,000.00, but offered nothing to refute plaintiff’s claims.  Plaintiff’s counsel placed the case into suit and added a claim under M.G.L ch. 93A/176D claiming the defendant’s insurer engaged in an unfair and deceptive settlement practice by offering an amount that was grossly lower than the damages sustained despite liability being reasonable clear.

The insurer’s counsel filed a motion to sever and stay the 93A/176D claim which was denied, allowing plaintiff’s counsel to conduct discovery on both the underlying tort claim and 93A/176D claim concomitantly.

As the case neared trial, it was clear that the defense planned to rely on an IME report that stated that the plaintiff had no lasting injuries and that he was capable of returning to the fulltime work at the Postal Service.  In addition, the defense had many hours of surveillance showing the plaintiff doing such things as riding a motor cycle, carrying heavy objects and shoveling snow.  The defense also contended that the IME performed on behalf of the Department of Labor was flawed, shoddy, and unsupportable.

The parties ultimately agreed to arbitrate the case.  An arbitration agreement called for arbitration of the tort matter and the then a second arbitration one month later on the bad faith claims against the insurer.

During the tort proceeding Plaintiff’s counsel argued that the defendant’s IME, the surveillance tapes and even the manner in which the Department of Labor examination was conducted was immaterial to the case.  In the end, the plaintiff lost his job as a direct result of the injury received in the accident, and lost wages as a result in the amount of $1.34 million dollars as determined by plaintiff’s economic expert, which was entered into evidence unchallenged.  Ultimately, the arbitrator agreed with the plaintiff’s argument and awarded plaintiff $1,504,000.00.

One month later the parties arbitrated the 93A/176D claim.  While waiting for the arbitrator’s decision, the parties agreed to settle the matter for an additional payment of $250,000.00 on top of the $1.5 million dollar award.

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