Insurer who rejected $100K settlement offer hit with $900K jury verdict

Following a rear-end collision, a pair of Atlanta attorneys offered to settle their client’s injury complaint for a $100,000 policy limit, but the defendant’s insurer declined.

Now Allstate Insurance Co. must hand over more than nine times that amount, after a Cobb County jury returned a six-figure verdict in the plaintiff’s favor.

Plaintiffs counsel Ibrahim J. Awad of The Awad Firm and J. Tyler Schermerhorn of The Schermerhorn Firm had to overcome a series of obstacles—from their client being discharged from medical care to her involvement in subsequent collisions before trial—to achieve the $900,208 outcome.

Now the duo is opening up about its prevailing trial strategy.

‘The damage was beneath the surface’

Plaintiffs counsel said when the defendant’s insured rear-ended the plaintiff at a red light in April 2016, the collision did not appear catastrophic.

The plaintiff did not got to a hospital and her vehicle did not have “a lot of visible damage,” per plaintiffs counsel.

“Her car was inoperable, however,” Schermerhorn told the Daily Report. ”She tried to turn it over, but it wouldn’t crank. The damage was beneath the surface.”

Like the damage to her vehicle, plaintiffs counsel contended collision-related injuries to their then 35-year-old client also existed “beneath the surface.”

When the plaintiff reported to an urgent care the day after the collision, plaintiffs counsel said staff diagnosed her “with a neck sprain, back sprain, and a shoulder injury” before prescribing medication.

“She was prescribed Norco, which she did not take, opting for a more holistic, natural approach,” Schermerhorn said. “She reported to a chiropractor, who referred her to get MRIs, which revealed a C6-C7 tear and a L5-S1 bilateral disc protrusion.”

Plaintiffs counsel noted that after 3½ months of treatment, medical providers discharged their client from care in 2016 with a “2 out of 10 pain rating” regarding “nine distinctly injured body parts.”

But it’s what the duo uncovered in its client’s medical records that enabled the attorneys to proceed with recovering damages for the plaintiff two years—and two additional vehicular accidents—later.

‘We found a miracle’

As private equity counsel at Allstate, Sarah Bossé Martin handled the insurer’s defense, but did not respond to a Daily Report request for comment.

When plaintiffs counsel made a $100,000 policy limits offer of judgment on their client’s behalf, they said defense counsel made an $85,000 pretrial settlement, instead.

Contending that the plaintiff endured permanent injuries, plaintiffs counsel opted to proceed to trial.

On July 17, opposing sides gathered before Cobb County State Court Judge Eric Brewton to try the case.

From the onset, plaintiffs counsel set out to overcome several challenges including their client’s involvement in two subsequent collisions that involved her medical transport via ambulance.

In addition to being released from chiropractic care following the underlying 2016 collision, plaintiffs counsel said their client then refrained from getting subsequent treatment for two and a half years upon becoming pregnant.

To overcome causation defenses, the plaintiff’s team relied on a key piece of evidence.

“We found a miracle note in the medical record that memorialized a phone call made to the chiropractic office, which noted her asking to come back to treatment. The answer was, ‘she’s been discharged, and future visits will be $150-$195 per session,’” Schermerhorn said. “[Our] client’s response was that she had to ‘watch her finances.’”

Schermerhorn said the evidence enabled plaintiffs counsel to address their client’s finances, and health insurance coverage, as requested by defense counsel to its detriment.

“[That] ultimately backfired [for defense counsel], because the client mentioned that health insurance could not be billed when it’s a car wreck case,” Schermerhorn said. “In cases like these, where there is a permanent injury, the pain is three times projected medical costs that client will have for the rest of her life. ”

‘Visual learning experience’

Rather than hinge their case on medical expenses, plaintiffs counsel opted to focus the jury on their client’s pain and suffering. To help jurors corroborate evidence that their client had been qualified as having a “31% whole body impairment rating” before the subsequent collisions, plaintiffs counsel took steps to make their case “a visual learning experience.”

“The jury wants a more interactive and illustrative experience, especially in the day of social media. In pursuit of this objective, attorney Awad reenacted how the wreck occurred,” Schermerhorn said. “We brought the visor that our client was wearing during the collision, put it on, and walked the jury through how the brim struck the steering wheel during the collision sequence, aggressively wrenching our client’s neck backwards in an awkward motion.”

To depict their client’s “real injury,” plaintiffs counsel used a model of a spine “with a balloon as the disc which would herniate upon compression.” Plaintiffs counsel incorporated a model skeleton masked with red tape in to emphasize the areas in which their client still experienced pain “on exactly the same day she was discharged from care.” In addition to having the plaintiff’s treating chiropractor present diagnostic imaging  detailing their client’s “incurable condition,” plaintiffs counsel utilized a six-foot-by-three-foot board to chronicle the totality of their client’s medical appointments following the collision.

“In closing, Mr. Awad used a hammer striking the model of the lumbar spine to illustrate the severity of impact,” Schermerhorn said. “Mr. Awad drew a road that had ‘Exit 35,’ ’40 Miles Ahead,’ and ‘Exit 75′ to show how many more years our client had to live with all of her injuries, that were also written by hand in the ‘Ditch of Damages’ which she was pushed into right outside Exit 35. It was a very [visual] presentation of the evidence.”

‘The jury asked for calculators’

Before concluding the three-day trial, plaintiffs counsel asked the jury for $1.7 million to $2.8 million in pain and suffering damages. The duo told jurors they valued their client’s husband’s loss of consortium claim at 15 to 25% of the amount awarded to the plaintiff. Across the aisle, defense counsel countered jurors should award $85,000 to the plaintiff and nothing for loss of consortium, per plaintiffs counsel.

After six hours of deliberations, the Cobb County State Court jury returned a verdict in favor of the plaintiff. Of the $900,208 award, jurors awarded $872,000 to the plaintiff and $28,208 for her husband’s loss of consortium claim.

“We felt it would be a big number when the jury asked for calculators, but we didn’t know how much,” Schermerhorn told the Daily Report. “The jury took their time in coming to the correct decision.

Following the verdict, plaintiffs counsel moved for attorney fees pursuant to O.C.G.A. 9-11-68(e) citing frivolous defenses during trial and Allstate’s “blown offer of settlement for policy limits.”

However, Shermerhorn said plaintiffs counsel withdrew “all attorneys’ fees claims” after defense counsel agreed to pay the verdict in full within 30 days.

Related:

Insurer sued for coverage of property damage from trespassing nephew

Insurers battle over duty to defend Christian counseling clinic owned by representative’s husband

The rising threat of negligent security claims: Proactive measures for mitigation