THIS IS AN ADVERTISEMENT
Serving Southern Indiana and Greater Louisville
Featured Trial Report
Caption: Tracie Burton v. State Farm Mutual Automobile Insurance Company
Cause Number: 47D01-0408-CT-932
Judge: Hon. Michael Robbins, Lawrence Superior Court
Carrier: State Farm Mutual Automobile Insurance Company
Representative: Cathy Fitzgerald
Damages Awarded: $65,814.30 (less 50% comparative fault), but reduced by credits and setoffs to a net verdict of $0.00
Incurred Medicals: $115,932.94
Attorneys: Rodney Scott (trial), Tricia Hofmann (discovery, trial preparation and appeal)
Synopsis:
Plaintiff was a passenger in a vehicle operated by her husband, Jack, when it was involved in an accident in Bedford, Indiana with a vehicle operated by Donna Bridwell. The Burtons were on their way to take their cat to the groomer and allegedly came to a stop at a four-way stop sign. Believing the coast was clear, they proceeded into the intersection. Tracie Burton saw Ms. Bridwell’s vehicle approaching, but allegedly did not realize there would be an accident and did not say anything about it to her husband. Ms. Bridwell’s vehicle struck the passenger side of the Burton vehicle, allegedly spinning it around 360 degrees. The Burtons theorize that Ms. Bridwell ran the stop sign.
Although her liability limits had been tendered and she had been released, Ms. Bridwell nonetheless testified at trial for the defense. For her part, she reported coming to a complete stop and looking both ways at the intersection. Seeing nothing, she began to slowly pull out into the intersection when the Burton car suddenly pulled in front of her. She struck the side of the vehicle, but denied spinning it around. After the accident, the Burtons proceeded to their appointment at the cat groomer’s, going to the emergency room later that day.
After the accident, Plaintiff underwent a five-month course of physical therapy. She stopped treating prior to being discharged, noting on her last visit that she was pain free. After a gap of nearly eight months, she resumed treatment with numerous medical providers. She went to two neurosurgeons, each of whom told her she was not a surgical candidate. Indeed, one of these surgeons believed that she had already recovered from the acute soft tissue injury caused by the accident, and that any residual complaints related to her preexisting, degenerative problems. The other opined that he could identify no cause for her complaints.
Undeterred, while vacationing in Florida, she saw a billboard for MicroSpine, which specialized in “minimally evasive” back surgeries. She underwent eight surgical procedures at MicroSpine, traveling to Florida for each of them.
Although Plaintiff’s complaints never went away after the accident, she was involved in another motor vehicle accident in July of 2005 (which resulted in another lawsuit defended by our firm and ultimately settled for a sum which triggered no payment under her UIM coverage, Burton v. Francis and State Farm Mutual Automobile Insurance Company). Plaintiff cut off her medical treatment and complaints as of the date of the second accident. Incidentally, after the second accident, she submitted to numerous additional surgical procedures at the hands of MicroSpine doctors, incurring approximately $150,000 in additional medical bills after that second accident.
At trial, Defendant called the two Indiana surgeons who declined to operate on the Plaintiff. In addition, Defendant called the physical therapist, who confirmed Plaintiff discharged herself early from physical therapy and was without complaints as of that time. The total medicals incurred by that point were $8,825.28. In argument, Defendant asked the jury to award Plaintiff that sum of medicals, plus pain and suffering from the March accident through the August discharge from physical therapy. On their verdict form, the jurors made it clear that is precisely how they arrived at their ultimate award.
The jury allocated fault evenly between Plaintiff and Ms. Bridwell. They awarded Plaintiff the sum of $65,814.30 which, after reducing for her own fault, yielded a verdict of $32,907.15. Prior to trial, Plaintiff had already received Ms. Bridwell’s liability limits of $100,000. In addition, $100,000 was paid under the medical payments coverage of Plaintiff’s own policy. Prior to trial, the parties had stipulated that State Farm would be entitled to a credit for these payments against any verdict. After applying the credit, Plaintiff’s verdict was reduced by the Court to $0.00.
Appealed to Indiana Court of Appeals, cause number: 47A01-1003-CT-185
Synopsis of Issues on Appeal:
Plaintiff raised three issues on appeal. First, she argued that it was error for the jury to have apportioned fault to her as a passenger in the vehicle. Second, she maintained that the jury’s damage award was inadequate, as it was for less than the stipulated-to medicals. Third, she insisted that State Farm’s payment of $100,000 in medical payments coverage should have precluded it from challenging that treatment at trial.
With respect to liability, we noted that any apportionment of fault was waived at trial, since Plaintiff herself agreed to – and even tendered – jury instructions and verdict forms which told the jury to apportion fault between the two parties. Further, even if it was error to have apportioned fault to Plaintiff, we argued that any such error would have been harmless. Even if the jury award were not reduced by any fault on Plaintiff’s part, the gross award was still less than the amount of the credits to which Plaintiff stipulated that State Farm was entitled.
We explained to the Court of Appeals that juries have the discretion to decide whether or not to award damages. The mere fact that the parties stipulate to the amount of bills charged is not a stipulation to the fact that the injuries were caused by the accident. Indeed, the jurors were presented with facts and argument which could reasonably have caused them to decide that only the treatment up through physical therapy was related to the accident with Ms. Bridwell. And that is exactly what happened.
Finally, our brief explained that the payment of medical payments benefits is different than the payment of underinsured motorist benefits. MPC payments must be made quickly, and they are paid irrespective of fault or causation. An insurer is entitled to be much more deliberate when deciding whether it owes UIM coverage. As they are different coverages, payment of MPC coverage should not estop an insurer from defending a UIM claim. Although there were no published cases in Indiana on this issue, we provided the court with authority from other jurisdictions that supported our position.
Court of Appeals’ Holding:
The Court of Appeals affirmed the verdict. Although it concluded that apportioning fault to Plaintiff was error, it was harmless error since the credits exceeded the gross verdict. The Court further noted that the jury was free to believe or disbelieve the Plaintiff’s medical proof, and that there was ample evidence to support the verdict. Unfortunately, and rather surprisingly, the Court of Appeals did not in any way address the third issue. Presumably, however, if the Court thought that it was problematic for State Farm as the UIM carrier to challenge medical bills that it paid under MPC coverage, it would have given attention to the issue. Inferentially, the fact that this third issue was not addressed suggests that Defendant’s argument was proper.
Transfer Denied by Indiana Supreme Court:
On March 30, 2011, the Indiana Supreme Court unanimously denied Plaintiff’s petition for transfer, making the Court of Appeals’ opinion final.
THIS WEBSITE AND THE RESULTS DESCRIBED ABOVE ARE NOT INTENDED TO CONSTITUTE AN ENDORSEMENT OF ANY PARTICULAR ATTORNEY OR CONSTITUTE A REPRESENTATION ABOUT THE QUALITY OF LEGAL SERVICES. ADDITIONALLY, WATERS TYLER, HOFMANN & SCOTT, LLC DOES NOT CLAIM THAT PAST RESULTS PREDICT FUTURE SUCCESSES AND CANNOT WARRANT OR GUARANTEE RESULTS IN PENDING OR FUTURE CASES.
