Underinsured motorist arbitration case story and arbitration

Orange County personal injury attorney John P. Burns recently represented a client in her case against her own insurance company. The client’s car was rear ended at a stop light in Riverside County, CA. The client had been in another rear end accident two weeks before.  She had only minor symptoms from that earlier accident. The client also had a slip and fall accident at work approximately two years later.  She had only minor symptoms from that fall.

The person who ran into the back of the client’s car had only $15,000.00 in liability insurance coverage. The insurance company for that driver paid its $15,000.00 policy amount to the client.  Attorney Burns then made a claim against the client’s own insurance company for Under Insured Motorist benefits from her own insurance company.   Under California law her own insurance company was entitled to a credit for the $15,000.00 she had already been paid so the remaining policy benefits was only $85,000.00.

After the second car accident the client experienced neck pain, low back pain and post traumatic migraine headaches.  She treated with a chiropractor and neurologist.  The chiropractor also sent the client for video motion X rays from a chiropractor in Los Angeles. That chiropractor found that the client had suffered injury to the ligaments that hold the discs of her neck in place.

Based on the video motion X rays, both the treating neurologist and treating chiropractor found that the client qualified for a body Impairment Rating under the guidelines of the American Medical Association. She was designated by those doctors as having a 25% to 28% Whole Body Impairment. This means that she had lost from 25% to 28% of her normal ability to function

Attorney Burns sent all of the client’s medical and chiropractic records and bills to her insurance company.  Mr. Burns asked her insurance company to pay the remaining policy benefits of $85,000.00.  The client’s insurance company refused and  offered only $8,000.00 to settle the case.  With his client’s approval, Mr burns refused that offer and demanded arbitration trial under his client’s insurance policy.

The case of the second car accident was recently tried as an Under Insured Motorist arbitration trial before a retired San Diego County Superior Court judge in San Diego.

Attorney Burns retained a neurologist to testify on his client’s behalf.  The client’s insurance company retained a different neurologist who testified that he thought the client was either faking or psychosomatic. He said he thought she had a Functional Overlay which he defined as either being psychosomatic or faking her claims of injury. On cross examination by Mr. Burns he admitted that , in the pre trial deposition of him by Mr. Burns, he admitted that he could not testify that she was psychosomatic or faking.

The client’s own insurance company also hired a consulting chiropractor to testify against the client.  At the arbitration trial, however, the insurance company testifying chiropractor agreed in his testimony that the client did qualify for a 25% to 28% Impairment Rating.  He agreed that, under the Motion X Ray findings and the American Medical Association Guides, she qualified for the 25% to 28% Impairment Rating.

In closing argument attorney Burns argued that the judge should award the total remaining policy limits of $85,000.00 to his client. Mr. Burns argued that the insurance companies own chiropractic expert had agreed in his testimony that the client had received a 25% to 28% Permanent Whole Body Impairment. Since the insurance company had offered no testimony to rebut the evidence introduced by Mr. Burns, the full $85,000.00 should be awarded to his client.

The judge is taking two weeks to reach his decision. Mr. Burns will publish the results on this site when he receives it from the judge.


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