Court Rules Insurer Off the Hook for Underinsured Motorist Claim

After being hit by an underinsured motorist, an injured driver files suit against the motorist's insurance. It's up to the court to decide who's responsible.
By: | May 7, 2019

Self-employed barber Gary George was in an automobile accident on the morning of Feb. 1, 2008. He suffered shoulder, knee and hand injuries.

Following the accident, George received medical care the same day. Records show he received an ice pack for his knee and anti-inflammatory medication before being released. Then, 20 days later, George returned to the doctor’s office, seeking further assistance for the pain he believed stemmed from the accident.

Eventually, George sought physical therapy for his shoulder, but not until years later.

Meanwhile, however, the person whom George was involved with in the accident was underinsured. George filed an underinsured motorist (UIM) action in 2015 against the motorist’s auto insurance carrier, Liberty Insurance Corporation.  (The gap in time was due to a statute of limitations set on UIM cases.)

The auto policy contained a “limitation on lawsuit” option, which required George to prove he had sustained a “permanent injury” caused by the accident.

During the trial, George had his doctor testify on his behalf. His doctor noted George had “superficial abrasions” on his right knee, and his left hand and elbow both retained “full range of motion without any problems.”

Leading up to litigation, Liberty had its doctor examine George. During trial, the doctor reported his findings: He testified plaintiff complained of pain and weakness in his right shoulder, which “was localized laterally, which is the outer aspect of the shoulder[.]”

This injury, said the doctor, could be considered a permanent condition, however, one that stemmed from before the accident. He characterized the pain as “age appropriate” arthritis.

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The trial jury unanimously found that George did not suffer a permanent injury. George filed a motion to overturn the verdict.

He argued that “the verdict was against the weight of the evidence because [Liberty’s] expert conceded [George] suffered a permanent injury proximately caused by this auto accident,” said the panel report.

But “the trial judge … expressly found [Liberty’s] expert witness did not concede this material issue.”

Yet the panel remained unmoved. They confirmed the trial jury’s verdict.

Scorecard: Liberty Insurance Corporation is not responsible for Gary George’s injuries after an accident with an underinsured motorist.

Takeaway: Insurers on the hook for injury claims are best prepared if they review the types of injuries examined and can identify potential root causes for said injuries. &

Autumn Heisler is the digital producer and a staff writer at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

4 Companies That Rocked It by Treating Injured Workers as Equals; Not Adversaries

The 2018 Teddy Award winners built their programs around people, not claims, and offer proof that a worker-centric approach is a smarter way to operate.
By: | October 30, 2018 • 3 min read

Across the workers’ compensation industry, the concept of a worker advocacy model has been around for a while, but has only seen notable adoption in recent years.

Even among those not adopting a formal advocacy approach, mindsets are shifting. Formerly claims-centric programs are becoming worker-centric and it’s a win all around: better outcomes; greater productivity; safer, healthier employees and a stronger bottom line.

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That’s what you’ll see in this month’s issue of Risk & Insurance® when you read the profiles of the four recipients of the 2018 Theodore Roosevelt Workers’ Compensation and Disability Management Award, sponsored by PMA Companies. These four programs put workers front and center in everything they do.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top,” said Steve Legg, director of risk management for Starbucks.

Starbucks put claims reporting in the hands of its partners, an exemplary act of trust. The coffee company also put itself in workers’ shoes to identify and remove points of friction.

That led to a call center run by Starbucks’ TPA and a dedicated telephonic case management team so that partners can speak to a live person without the frustration of ‘phone tag’ and unanswered questions.

“We were focused on building up a program with an eye on our partner experience. Cost was at the bottom of the list. Doing a better job by our partners was at the top.” — Steve Legg, director of risk management, Starbucks

Starbucks also implemented direct deposit for lost-time pay, eliminating stressful wait times for injured partners, and allowing them to focus on healing.

For Starbucks, as for all of the 2018 Teddy Award winners, the approach is netting measurable results. With higher partner satisfaction, it has seen a 50 percent decrease in litigation.

Teddy winner Main Line Health (MLH) adopted worker advocacy in a way that goes far beyond claims.

Employees who identify and report safety hazards can take credit for their actions by sending out a formal “Employee Safety Message” to nearly 11,000 mailboxes across the organization.

“The recognition is pretty cool,” said Steve Besack, system director, claims management and workers’ compensation for the health system.

MLH also takes a non-adversarial approach to workers with repeat injuries, seeing them as a resource for identifying areas of improvement.

“When you look at ‘repeat offenders’ in an unconventional way, they’re a great asset to the program, not a liability,” said Mike Miller, manager, workers’ compensation and employee safety for MLH.

Teddy winner Monmouth County, N.J. utilizes high-tech motion capture technology to reduce the chance of placing new hires in jobs that are likely to hurt them.

Monmouth County also adopted numerous wellness initiatives that help workers manage their weight and improve their wellbeing overall.

“You should see the looks on their faces when their cholesterol is down, they’ve lost weight and their blood sugar is better. We’ve had people lose 30 and 40 pounds,” said William McGuane, the county’s manager of benefits and workers’ compensation.

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Do these sound like minor program elements? The math says otherwise: Claims severity has plunged from $5.5 million in 2009 to $1.3 million in 2017.

At the University of Pennsylvania, putting workers first means getting out from behind the desk and finding out what each one of them is tasked with, day in, day out — and looking for ways to make each of those tasks safer.

Regular observations across the sprawling campus have resulted in a phenomenal number of process and equipment changes that seem simple on their own, but in combination have created a substantially safer, healthier campus and improved employee morale.

UPenn’s workers’ comp costs, in the seven-digit figures in 2009, have been virtually cut in half.

Risk & Insurance® is proud to honor the work of these four organizations. We hope their stories inspire other organizations to be true partners with the employees they depend on. &

Michelle Kerr is associate editor of Risk & Insurance. She can be reached at [email protected]