Motorcyclist’s Claim for Underinsured Motorist Benefits
The collision occurred on the freeway at the east end of Portland. A motorcyclist was traveling from northbound Interstate 205 onto eastbound Interstate 84 in the right lane on a Buell motorcycle. He was wearing his helmet and full protective leather gear. An underinsured motorist was operating a 1999 Harley Davidson motorcycle in the left lane behind a pickup truck. The pickup slowed as it approached backed-up traffic. The underinsured motorist failed to slow, crashed into the right rear of the pickup, and suddenly fell directly into the path of the man we represented, in the right lane, causing the crash.
Several eyewitnesses reported that man we represented could not have avoided the collision. The fault of the underinsured motorist, and the fact that our client’s harms and losses were substantial, were recognized when the at-fault driver’s insurance company settled for its policy limits. Our client had additional insurance coverage that included Underinsured Motorist benefits.
Harms and Losses
The injured motorcyclist was taken by ambulance to the Emergency Department of Legacy Emanuel Hospital in Portland, where he was admitted to the Trauma Service Unit. He remained hospitalized at Emanuel for the next six days. X-rays revealed multiple left rib fractures with subcutaneous air along the left chest wall; a comminuted fracture of the left scapula; a fracture of a foot bone, and a fracture in the left hand. A CT of the chest revealed a laceration in the kidney, and a left pneumothorax (punctured lung) which required chest tube placement. This CT also noted significant internal damage to his spleen. The motorcyclist was also diagnosed with a fracture of the left collar bone, and had lacerations and abrasions. He was documented to be in significant pain due to his extensive injuries. He was later discharged from the hospital with orders to follow up with an orthopedic surgeon for further assessment of his orthopedic injuries.
Two days after being discharged from the hospital and eight days following the crash, the man suddenly became weak, with increasing abdominal pain. He became sweaty and dizzy when he tried to stand, and was very pale. He was rushed from his home by ambulance to the Emergency Department with the sudden onset of severe left upper quadrant pain. Because of the severity of the pain and the history of trauma, a CT scan of the abdomen was done, which showed a ruptured spleen with intraperitoneal bleeding, both subcapsular and peritoneal hemorrhaging. The splenic rupture was treated nonoperatively, and after six days, the man was discharged from the local hospital.
The injured motorcyclist had a series of follow up visits with a local orthopedist, who referred him to a physical therapy. At the time of his physical therapy evaluation, the man’s pain level registered 6-7 on a 10 scale. His physical therapy program consisted of treating 2 times a week for 5 weeks. At the end of his physical therapy program, he continued to have pain, soreness/tenderness, and stiffness.
The man also experienced vertigo following the collision. His primary care physician noted this vertigo might be part of a post-concussion syndrome, and also had concerns that the man’s clavicle did not heal properly, as the X-rays showed the union to be questionable.
The orthopedic surgeon again examined the man, imposing permanent medical restrictions on lifting and any overhead work. The surgeon found that the man was left with a disability that prevented him from working at his previous job as a repairman. The orthopedic surgeon also concluded that the man would likely continue to have to have pain in the future, may require further physical therapy, and may have further medical problems resulting from these injuries. “The restrictions are permanent and he will never be able to return to work as a repairman.”
The man continued to live with the effects of the significant injuries. His shoulder and clavicle continued to be painful and stiff. He took Ibuprofen daily for pain. He was also sometimes bothered by his injured ribs. His strength on his left side was left diminished. His injuries limited his ability to do many of the physical activities and hobbies he used to enjoy, such as riding a bicycle, gardening, digging, and working in the yard. His wife had to hire outside help for these kinds of tasks, which he normally did before the collision.
The collision initially caused the man to miss three months of work as a repair technician with his long-time employer. Before the collision, he regularly carried a 40 pound toolbox around with him, plus any added weight for any parts that needed to be replaced. He was also required to do extensive climbing, crawling, stooping and reaching as a maintenance and repair technician. Due to the collision injuries, he was unable to meet the physically demanding requirements of his position, and was eventually forced to leave his employment. Afterward, he went to the less physically demanding work of being a state inspector, but at a significant loss in income.
Notes about the case
We successfully obtained a $100,000 policy limits settlement against the underinsured motorist. Because the motorcyclist’s harms and losses far exceeded that amount, he needed to also seek compensation from his own insurance company under his Underinsured Motorist coverage.
An underinsured motorist case sometimes can be resolved by litigation in the court system, and sometimes by statutory arbitration. Arbitration of underinsured motorist cases does not suffer from all of the problems or ordinary consumer arbitrations, in part because the injured person is able to appoint one of the arbitrators (the insurance company appoints another arbitrator, and those two appoint a third arbitrator; two out of the three must agree for there to be an arbitration decision).
Different underinsured motorist cases are handled through the court system or through an arbitration track, depending on multiple factors. In this case, the underinsured motorist claim was pursued through arbitration. There was a $150,000 underinsured motorist policy, and additional coverage on top of that. The insurance company eventually requested a pre-hearing mediation. The insurance company argued that the motorcyclist was partially at fault. However, it was never able to to respond to the question of what, if anything, the motorcyclist supposedly did wrong. His only “fault” seems to be that he was riding a motorcycle, which we thought would not likely count for much in a collision with another motorcyclist. All the witnesses agreed that he was properly riding in his own lane, and that there was not time for him to do anything to avoid the crash.
In the mediation, the insurance company agreed to pay the full $150,00 underinsured motorist policy limits, plus an additional $50,000. Together with the underlying policy limits settlement with the insurance company for the other party, the injured motorist’s recovery totaled $300,000.
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