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The Dashboard Knee

CASE FACTS

Bill was new in town. A recent transfer from Michigan State, he’d arrived in Richmond just a few weeks before with the goal of finishing up his last two semesters of college. Tall, lean and good looking, he’d been spotted a couple of weeks earlier by a talent producer and was asked to work to as a model at an upcoming men’s runway show. While on his way to an evening rehearsal, waiting at a stop light, he was rear- ended by a car occupied by three young men. The impact was minor, but sufficient enough to put a small dent in the bumper of his car and cause his knees to hit the dashboard.

knee-1Bill got out of his car to look at the damage and exchange information. The driver of the other car didn’t want to involve the police, but willingly exchanged identifying and insurance information. A police officer happened by, asked if everyone was alright, and moved on as soon as he was told that the situation being handled. Using his cell phone camera, Bill snapped pictures of the other driver’s information, both vehicles, and returned to his car. The accident seemed more an annoyance than anything else, although his knee hurt enough to make him limp a little. Bill called the fashion show producer told him what had happened and that he would not be coming to the rehearsal. He also called the police department to make sure nothing else was required of him as a result of the accident.

Later that night, Bill called his father to say he had been in a minor accident and that he was fine although his knee was giving him a little trouble; he said the same thing that night to his girlfriend. Bill’s father was concerned about his son’s complaint of knee pain, Bill had undergone arthroscopic surgery only seven months earlier, but Bill didn’t think it was a big deal and declined to seek medical treatment.
Bill’s knee still hurt almost two weeks after the accident, so he went to a family practitioner to have it checked out. The doctor noted some moderate swelling and told him to follow up with his orthopedic surgeon. A week or so later Bill saw his surgeon who was concerned about a clicking noise in Bill’s knee and ordered a MRI. Bill was busy with college and postponed the MRI until June when he was home for summer break.

knee-2Bill also wasn’t immediately concerned about repairing the cosmetic damage to his old beater of a car. It wasn’t until August, over four months after the accident, that he took the car to a body shop for a repair estimate. He had learned from his own insurance company, after his father had reported the accident and Bill had given a taped statement, that he could submit the cost of the repairs to them or to the insurance company of the young man who hit him.
By the end of the summer, Bill was concerned that he might need another knee surgery, so he finally decided to call the defendant’s company about getting reimbursed for the damage to his car and his mounting medical expenses. He didn’t consider calling a lawyer. His father had told him he did not need one and he could get fair compensation on his own. The defendant’s company was surprised to hear from him, though, as their client had not advised them of any accident. They agreed to investigate and get back to him. They asked him to send along the accident report and the body shop estimate.

With no accident report to send, Bill sent the body shop estimate stating that the vehicle needed a $30 bumper cover with a couple of coats of paint to match the color of his car. The total estimate was $632.
Complicating things further, Bill had not yet followed up with the orthopedic doctor after his June MRI. Now it was September, and he didn’t know if more surgery was in his future. When he finally did set up an appointment in October, he learned that a surgical repair was recommended. It would cost about $15,000 plus the cost of follow up physical therapy, much of which would not be covered by his health insurance.knee-3

Bad news in hand, Bill called the defendant’s carrier and was shocked to hear two things:
• The other driver said the impact in the accident was so slight that there was no damage to either vehicle and no one got hurt, the reason he had not reported the accident.
• The defendant’s carrier, having reviewed the damage to Bill’s car, denied that he could have received a serious injury from such a minor impact, questioning whether the accident with their insured had suddenly become a convenient way to get paid for damages from a different accident.
They offered Bill $2,000 in full and final settlement.
In December, about 3 weeks before his anticipated surgery, Bill called Burnett & Williams.

CHALLENGES

Many of the problems Bill described when he first came in to see us were self-inflicted. The passage of time had permitted various avenues of proof to erode and, importantly, had created a high level of skepticism on the part of the insurance company.knee-4

First, we had to find a way to prove that there was indeed an accident that included property damage on the evening of April 3rd. Second, we had to prove that Bill had hurt his knee in the accident. Third, we had to prove that the need for surgery was the result of the accident, not a less than perfect outcome from the surgery only 7 months prior to the accident. In legal terms, the first issue is a matter of proving a fact.

The second issue asks whether the accident was the proximate cause of his injuries (see jury instruction). The third issue raises the legal question of whether the knee injury, if proven to have been caused by the accident, was a new injury or was the aggravation of a pre-existing injury (see jury instruction).

SOLUTIONS

Bill possessed or had access to much of the proof we needed. Without years of experience in
dealing with insurance companies and the law, he had no appreciation of its importance or how it should be marshaled for maximum persuasion.

We first interviewed him thoroughly about every detail he could remember. With his permission we then talked to his parents about what they remembered. This was done while we awaited a response to our records request to all of his treating doctors. These requests included treatment of his knee both before and after the accident.

We learned that:knee-5

1. Bill had taken pictures of his car and the defendant’s car on the night of the accident. Bill still had the pictures in his phone and they showed damage to the front fender and headlight of the defendant’s vehicle as well as a match to the paint color seen on Bill’s bumper.

2. The bumper had been hit hard enough that Bill and his father has to drill and bolt it back in place after the accident.

3. Bill had not only called his father the night of the accident, but that his Dad had called their own insurance company the next day and Bill had given a recorded statement a few days after that.

4. Bill had used his cell phone to call the police the night of the accident.

5. Bill had reported all of this information immediately after the accident to his girlfriend, a woman he was no longer dating.

6. He is 6’8″ tall and 195 pounds. His usual seated position in his compact car places his knees less than three inches from the dashboard.

7. The calls to his Dad and his insurance company were made on a cell phone for which there were records available.

8. He had been released from the care of his doctor after the first surgery well before the accident and had been playing basketball regularly with friends and with his Dad without complaints.

9. The orthopedic surgeon had told Bill that the injuries he saw on MRI after the accident were consistent with trauma and not with the wear and tear of athletic activities. Importantly, he was willing to put that opinion in writing.

While Bill underwent his repair surgery, we went to work collecting the available records. We also obtained affidavits of his parents, along with some photographs of Bill shooting baskets with his dad and the family in front of their attractive brick home. We enlarged the photos of the defendant=s vehicle to demonstrate its damage. We asked Bill to get us a photograph of the position of his legs in relation to the dashboard in his normal driving position in his car. We obtained a transcribed copy of Bill’s recorded statement to his own insurance company. We obtained the cell phone records of calls made to Bill’s family and the police on the night of the accident. Lastly, after the surgery we asked Bill’s doctor for his written opinion with respect to the cause of the accident.

Once Bill had fully recovered from his second surgery and was back to his usual activities, we submitted a demand package to defendant’s insurance with all of the evidence we had collected. Their attitude now changed. They were confronted with admissible evidence of an accident and a consequent injury that had required substantial treatment. Now it became apparent that their insured might have been less than forthcoming when asked about the accident and the Ano damage, no injury@ story may have been a dishonest explanation of his failure to report the accident in a timely fashion.

knee-6Faced with evidence about which there could be little doubt and a prominent doctor=s opinion letter, in the first conversation with the adjuster after sending the demand package, the offer to settle moved from the original $2,000 to $35,000. Under the circumstances, the somewhat low initial offer might be explained as a test of the impulsivity of a young person. Bill let us do our job and after a month or so of negotiation, he accepted a settlement equal in net dollars to him to the defendant=s policy limit of $100,000.

CONCLUSION

It is not unusual to see cases where there is obvious negligence on the part of the defendant and significant injury to the plaintiff, but the third leg of the legal stool must be proven. Without evidence of the alleged negligence being the cause of the plaintiff=s damages, the case for compensation has not been made. Careful factual investigation can be the difference between a just result and a nuisance value settlement.