On January 24, 2009, Garo Kahvejian, a 48 year old jewelry store owner, sustained an injury to his hip when he was driving through the intersection at South Airmont Road and Campbell Avenue in Airmont (Rockland County) and his car was struck by a driver making a left turn.
The Scene of the Accident:
After two days of trial in the ensuing lawsuit, the judge directed a verdict as to liability ruling that the defendant was fully at fault. The Rockland County jury then heard testimony as to plaintiff’s injuries and on October 14, 2011 awarded pain and suffering damages in the sum of $800,000 ($50,000 past – 2 3/4 years, $750,000 future – 20 years).
The trial judge ordered a reduction of the future damages award to $375,000 and then the defendant appealed claiming that plaintiff’s claims should have been dismissed entirely because his injuries did not meet the serious injury threshold under Insurance Law Section 5102:
“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
Alternatively, defendant argued that the reduced total of $425,000 was excessive.
In Kahvejian v. Pardo (2d Dept. 2015), the defendant’s arguments as to the threshold were deemed without merit and the $425,000 pain and suffering award was affirmed.
As set forth in the court’s decision, Mr. Kahjevian’s first medical treatment following his accident was two weeks later when, after persistent hip pain, he made an appointment with an orthopedic surgeon. He was ultimately diagnosed with an early stage of avascular necrosis when MRI film three months later showed a loss of blood supply to the hip.
According to his doctor, plaintiff’s condition results in portions of dead bone in the hip for which there are two types of surgery – one involves drilling a hole in the bone and irrigating it with blood (which the doctor testified is only 40% successful), the other is a total hip replacement (which the doctor recommended but plaintiff hadn’t yet undergone).
Here are the injury details:
- used either a cane or crutches for seven weeks; at trial he walked with a limp
- persistent and permanent hip pain
- significant loss of range of motion
- unable to return at all to activities he’d enjoyed daily for 30 years such as martial arts, cycling and running
- unable to play with his teenage children
- unable stand for more than 45 minutes or sit for long periods
- forced to sleep on first floor couch four nights a week due to inability to climb stairs to second floor bedroom
- post-traumatic hip arthritis
- Plaintiff testified that despite being in severe pain at the scene of the crash, he declined medical treatment because he was driving home from his jewelry store and had in his possession valuable diamonds and was concerned for their security.
- There was no loss of earnings claim.
- Plaintiff treated with his orthopedic surgeon only five times (four in 2009 and once in May 2011 shortly before trial).
- Plaintiff’s pre-trial settlement demand was $100,000 with no offer from the defendant.