Facts

On May 26, 2004, at approximately 6:59 a.m., claimant Kimberlee Pogorzelski, a 52-year-old homemaker, was driving her vehicle, a 1995 Ford Crown Victoria, in Camarillo, California, wearing a seat belt. The vehicle in front of her slowed for an object in the road. The driver of the vehicle claimant was behind, Steven Nunez, testified at his deposition that he felt two impacts from behind. Claimant testified at her deposition that she is not sure whether she impacted the Nunez vehicle before her vehicle was impacted from behind. It was undisputed that claimant was rear-ended by the underinsured driver. The claimant's vehicle was totaled.

CLAIMANT'S CONTENTIONS:
The claimant argued that the party rear-ending her vehicle was the sole negligent entity and that the collision proximately caused her injuries.

RESPONDENT'S CONTENTIONS:
Mercury Insurance argued that claimant may have rear-ended the vehicle in front of her prior to being rear-ended based upon the testimony of claimant and Mr. Nunez. Mercury further argued that the medical condition necessitating her surgeries was pre-existing to some extent, based upon claimant's cervical MRI and a consultation with a neurosurgeon for neck complaints less than one year before the subject accident.

Specials in Evidence

$140,000 (pre-Hanif)

Injuries

The claimant suffered cervical injuries, resulting in anterior cervical microdiscectomy and interbody fusion at C6-7 level, using iliac crest graft, followed by an anterior cervical microdiscectomy and interbody fusion at C5-6, using allograft and application of an anterior cervical plate.

Result

The claimant initially settled with Chavez for his policy limits of $30,000. Prior to UIM arbitration, the claimant settled her claim against Mercury Insurance for policy limits of $220,000. The claimant then recovered policy limits of $25,000 from Scottsdale Insurance under an umbrella policy.