$1,300,000 in Traumatic Brain Injury Underinsurance Claim

This was an Underinsurance Arbitration claim. On September 27, 2001, the Claimant was operating a company vehicle when she stopped on the shoulder of Route 95 in Danvers to make a cell phone call.  Her vehicle was rear ended by the tortfeasor.

The Claimant was rushed to the ER where she was admitted for treatment of a subarachnoid hemorrhage, fractures of her spine, pelvis and hip; and tear of her aortic wall. Claimant, who was a former professional and collegiate basketball player made a significant recovery from the physical injuries due after extensive inpatient and outpatient rehabilitation therapies. However, Claimant was left with significant cognitive problems from her traumatic brain injury including decreased memory, attention, planning and organization; cognitive fatigue; decreased auditory comprehension and verbal expression; decreased mental manipulation of numbers and info; and decreased reading and writing skills.

At the time of the crash, Claimant had been a high level Executive with major US corporation earning over $160,000 per year. She settled her claim against the tortfeasor for the policy limit of $40,000 and pursued an Underinsurance claim against her employer’s motor vehicle insurer, the Respondent.

The Respondent insurance company opposed Claimant’s Complaint for mandatory arbitration of the Underinsurance claim arguing that the Claimant sole remedy was worker’s compensation benefits. Respondent cited Berger v. H.P. Hood, Inc., 416 Mass, 652, 656-657 (1993) and the Massachusetts Worker’s Compensation Statute.

Claimant’s counsel successfully argued the Claimant was entitled Underinsurance benefits and worker’s compensation benefits because the vehicle operated by the Claimant was not registered to Claimant’s employer (even though the employer had provided it to the Claimant). Claimant’s counsel demonstrated that the subject vehicle was leased by Claimant’s employer from an entity that was apart from the employer. Citing the principles enunciated in Eweiss v. Seaco Insurance Company, No. 993353 [Mass. Super. 2002], Claimant’s counsel argued that the Claimant could recover uninsured motorist benefits from any insured under the Respondent policy which was not her employer. Claimant’s counsel demonstrated there are at least twenty-seven named insureds under Respondent’s policy, many of whom are, arguably, legally distinct from Claimant’s employer including the registered owner of the subject vehicle.

The parties then agreed to a three person Arbitration panel and discovery ensued. Much of the discovery focused on Claimant’s ability to pursue a business venture (after the incident) with a partner which was a retail store. Respondent conducted surveillance of the Claimant at the retail store. After two years, the store failed and had to be closed.

Notwithstanding her attempted business venture, the Claimant received Long Term Disability insurance, worker’s compensation benefits and Social Security Disability, in the aggregate amount of $500,000, all of which were to be set off against any Arbitration award granted by the panel.

During discovery, the parties agreed to mediate the Underinsurance claim. Three weeks after concluding a day long mediation and prior to the deposition of the president of the corporation who had employed the Claimant, the matter was settled in the amount of $790,000 plus a waiver of the setoff of over $500,000, making the value of the claim equal to $1,300,000.00