On March 28, 2017, Otmar Boser was driving his car on the Bronx River Parkway in Yonkers. While making a left turn onto Leewood Avenue, his vehicle was struck in the rear passenger side by a loaner vehicle owned by Scarsdale Shell Service Center and operated by one of its customers.

Mr. Boser, a 79 year old retired professor of electrical engineering, was grievously injured and died a week later. His widow sued the other driver; the lawsuit was quickly settled for the driver’s $50,000 policy limits. Thereafter, Mrs. Boser commenced an arbitration proceeding under the so-called underinsurance (“SUM”) provisions of Scarsdale Shell’s policy with Harleysville Insurance Company.

On 11/7/19, an American Arbitration Association arbitrator heard testimony and considered extensive documentation before signing her award that day finding that (a) each driver was 50% at fault and (b) $4,000,000 represented reasonable compensation for decedent’s pain and suffering.

Claimant was awarded $950,000 because (a) her husband was 50% at fault (reducing the $4,000,000 to $2,000,000), (b) the SUM policy limit was $1,000,000 and (c) $50,000 was already received from the other driver’s insurance company.

The day after the arbitration hearing but before the parties were aware that a decision had already been rendered by the arbitrator, Harleysville offered $450,000 to settle the claim. The day after that, claimant’s attorney emailed the carrier that he had been authorized to accept the offer.

When AAA was notified by phone on 11/12/19 that the case had been settled, the parties for the first time learned that the arbitrator’s decision had already been made and was on its way to them in the postal mail. Claimant took the position that there was no binding settlement and she should be paid the $950,000 award; the insurance company claimed the $450,000 settlement was binding. In Harleysville Ins. Company v. Boser (2ed Dept. 2023), the appellate court affirmed the lower court’s holding that there was no binding settlement agreement, the arbitration award stands, and claimant must be paid $950,000.

Here are the injury details:

  • C5-6 vertebral bodies unstable fracture
  • hemorrhage in spinal canal
  • several displaced fractured ribs, sternum fracture and collapsed lung
  • slow weeklong progression from use of extremities to paralysis as spinal bleeding continued and cord pressure increased

On April 4, 2017, Mr. Boser, while remaining fully engaged in his treatment decisions at the hospital, made the determination to refuse a tracheotomy and discontinue artificial feeding and breathing, opting for a do not resuscitate (“DNR”) order. He passed away later that same day as a direct result of the injuries he suffered from the motor vehicle crash.