On October 5, 2013, Christine O’Connell was sitting in her car stopped at a red light in Hamburg (a Buffalo suburb) when another driver drove through the light causing a crash. Christine, then a 24 year old student, declined medical treatment at the scene but called her doctor that night complaining of low back pain.
In her ensuing lawsuit, Christine recovered the insurance policy limits of $500,000 against the other driver and owner.
She then made a supplementary underinsured motorist (“SUM”) claim against her own carrier, State Farm. The SUM arbitrator awarded $2,250,000, less a setoff of $500,000 (the amount already recovered in the underlying lawsuit), for a total of $1,775,000.
In O’Connell v. State Farm Mutual Auto. Ins. Co. (4th Dept. 2020), the judgment entered upon the SUM arbitration award has been affirmed. The appellate court stated that the findings of the arbitrator were rational, had evidentiary support, and were not arbitrary and capricious.
Here are the injury details:
- five herniated discs: at T12-L1, L1-2, L3-4, L4-5 and L5-S1 (with bilateral radiculopathy and compression on nerve roots)
- low back pain, radiating and continuing
- unable to return to prior activities such as running, swimming and regularly exercising
- limited in ability to bend, get dressed, cook, clean and perform household chores
- need for three level discectomy and fusion of L3-S1 within near future
The defense noted that plaintiff’s first medical treatment herein was 10 days after the accident, she never took any medicine except Tylenol, did not miss any time from school because of the accident and was involved in a 2006 car accident following which she was diagnosed with cervical and thoracic herniations that “may ultimately require surgical intervention.” The defendant’s expert neurosurgeon in the 2013 matter opined that plaintiff sustained some temporary pain to her lumbar spline that requires no further treatment and the MRI reports showing herniations portray only mild degenerative changes.
- Plaintiff graduated from law school after the accident and joined her father’s law firm – the firm that represented her in this matter.
- The only medical provider plaintiff treated with other than her neurosurgeon was a chiropractor (250 times); she never underwent physical therapy or saw a pain management physician.