David Stotler v. Sumitomo Marine and Fire Insurance Company
Published: Feb. 19, 2003 | Result Date: Dec. 21, 2002 | Filing Date: Jan. 1, 1900 |Case number: DUM0002531 Arbitration – $450,000
Judge
Court
Case Not Filed
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
Michael A. Lupo
(medical)
Alan J. Goldman
(medical)
Defendant
Ted Field
(medical)
Facts
On Sep. 23, 1994, the plaintiff was involved in a high speed multi-car accident on the I 405 northbound freeway. At the time of the accident, the plaintiff was in the course and scope of his employment with Mitsui OSK Lines. Sumitomo Marine and Fire provided the workers' compensation coverage for Mitsui. As part of the plaintiff's employment package, the plaintiff was provided with an automobile insurance policy, also through Sumitomo, with uninsured motorist limits of $1 million. Amar Khawaja was also driving down the freeway when he swerved into a second vehicle. Khawaja lost control of his vehicle and struck the plaintiff's vehicle. The plaintiff's vehicle also struck the center divider of the freeway. Khawaja had minimum policy limits of $15,000 to $30,000. Khawaja claimed that he swerved because of a traffic cone that had fallen off a CalTrans truck. The CalTrans truck was never identified. As a result of these impacts, the plaintiff suffered immediate tingling in his legs. The plaintiff claimed that he struck his head above the driver's side door, but there was no reference in the ambulance report or hospital record of any impact to the plaintiff's head. The plaintiff sustained no loss of consciousness. The plaintiff was taken by ambulance to the hospital where he was discharged after approximately four hours with a diagnosis of low back strain. A few days later, the plaintiff returned to his job as a sales representative for Mitsui OSK Shipping. Ten days later, the plaintiff sought care with an orthopedist who referred the plaintiff for physical therapy. The physical therapist first documented various head symptoms including headaches, fogginess and tinnitus three weeks after the accident.
Settlement Discussions
The plaintiff indicated a willingness to go to mediation with the understanding that settlement would require a "six figure settlement." The defendant denied mediation and offered $15,000 in new money.
Specials in Evidence
$26,000 None None specified unspecified
Injuries
Over the next several years, the plaintiff continued to treat sporadically for neck pain, back pain, pain and numbness in the legs and ongoing head symptoms.
Other Information
The plaintiff did not demand arbitration or file a claim for uninsured motorist arbitration within one year. The plaintiff did not file a lawsuit within one year. Sumitomo, as the workers compensation carrier, filed a timely subrogation action as against the negligent driver. Some 20 months after the accident, the plaintiff intervened in Sumitomo's action which had protected the one year statute. After the $15,000 policy was exhausted the plaintiff demanded UM arbitration. Sumitomo filed a declaratory relief action, claiming that the plaintiff had not exhausted all policies of insurance because neither Sumitomo nor the plaintiff had sued the State of California (CalTrans). The party who was alleged to have caused the accident had claimed that the accident resulted because he was forced to swerve on account of a cone that had fallen off a CalTrans truck. The declaratory relief action went to trial before Judge Homor Garrett who issued a ruling in favor of the plaintiff but he died before the judgment was signed. Judge Lois Smaltz signed the judgment pursuant to C.C.P. Section 635. Sumitomo appealed the judgment and on June 8, 1999, the Appellate Court affirmed the judgment. On August 29, 2001, the workers compensation matter was resolved for past medical expenses and permanent disability of $15,000. The total credit available to Sumitomo was therefore $45,349.
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