Favorable Result for a Rejected Tender
Attorneys Jesse Shurman and Stacey Bosch of our Tampa office recently obtained a favorable verdict on behalf of a Progressive insured Defendant in a case involving an admission of liability and a tender rejection on behalf of the insured in Pasco County.
The case involved a motor vehicle accident in Hernando County in September 2022. The Defendant driver caused a rear-end collision with the Plaintiff’s vehicle when he fell asleep behind the wheel of his Jeep. Plaintiff refused treatment at the scene so she could attend to one of her three minor children who was taken to the hospital after the collision for further evaluation. The following day, Plaintiff sought treatment from a chiropractor and presented with injuries to her neck and back, with complaints of radiating pain from her cervical spine and numbness, tingling and weakness in her right arm and hand. She subsequently treated with an orthopedic surgeon and underwent a two-level ACDF in her cervical spine six months after the accident. Prior to the case being referred to our firm, the Plaintiff had undergone the surgery, and the available policy limits of $100,000 had been tendered and rejected by the Plaintiff.
Through discovery, it was revealed that the plaintiff had nearly a decade of pre-incident medical treatment for a myriad of complaints, including neck pain, back pain and right upper extremity numbness and pain. She had also been involved in two prior motor vehicle accidents for which she had filed a past claim for injuries. At trial, the plaintiff testified that much of the pre-incident treatment was only for “maintenance” care.
On cross examination, plaintiff’s surgeon and her retained radiology expert also agreed that they could not “date” Plaintiff’s radiological findings of a new herniation at C4-C5 to the date of the subject accident within a reasonable degree of medical probability, and these same physicians also conceded that they were unaware of the extent of Plaintiff’s past chiropractic care, or that the Plaintiff had made similar complaints of radiating pain, numbness, and tingling in her upper extremities on several occasions in the years and months leading up to the subject accident. Plaintiff’s surgeon further testified that these same neurological complaints formed the basis of his post-accident surgical recommendation.
Plaintiff’s experts testified that the accident aggravated her prior condition and caused a new herniation at C4-5, which was the source of Plaintiff’s radicular complaints. Her surgeon further opined that Plaintiff would need a future revision surgery at least once in her life. The defense’s experts testified that Plaintiff’s pre and post- accident treatment records and radiological findings all demonstrated the naturally occurring progression of longstanding degenerative disc disease, and the absence of any acute or permanent injury that could be causally related to the subject accident.
In closing, Plaintiff asked the jury for an award of $5,300,000. The defense suggested that the jury should award between $3,000 and $11,000 for 6-12 weeks of conservative care, in line with the defense expert’s assessment, and an additional $25,000 for damages.
After 3 hours of deliberations, the jury returned a verdict of only $50,000 for past medical expenses, no future medical expenses, a finding of permanency, and no award for past or future pain and suffering.
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