Facts

On Aug. 30, 2008, plaintiff Joseph Conlin, 37, and his friend, Mike Hostler, were leaving a bar in Willow Creek, California, just after 2:00 a.m. Conlin, a Humboldt County Sheriff's Deputy, claimed he was too intoxicated to drive and accepted a ride from his friend. At approximately 3:15 a.m., Mike Hostler was traveling northbound on Community Services Road, south of Hostler Ridge Road, within the Native American Reservation boundaries of Hoopa. Conlin was a passenger in the vehicle. Hostler lost control of his vehicle while negotiating a curve and struck a tree head-on. Conlin suffered injuries to his right arm.

Conlin sued Hostler, alleging he was negligent in the operation of his vehicle. Hostler's insurance carrier, State Farm, tendered defendant's $50,000 policy limits, which was accepted by Conlin. Thereafter, Conlin proceeded with an underinsured arbitration claim against his insurer, Farmers Insurance.

Settlement Discussions

Farmers made no offer to resolve the claim prior to arbitration.

Damages

Conlin sought $58,000 in past medical costs; $2,511 in stipulated lost earnings; between $9,000 and $19,000 in future medical costs. He sought $200,000 recovery at arbitration, the full remaining coverage available under his Farmer's policy, after offset from his underlying $50,000 settlement. At arbitration, respondent Farmers submitted that claimant did not carry his burden of proof regarding the need for a scar revision surgery. Further, respondent submitted that the value of Conlin's claim was in the range of $100,000, that $50,000 should be credited to any award, and that claimant should bear 50 percent comparative negligence.

Injuries

Conlin was brought to the emergency room via ambulance. He sustained a spiral angulated distal humeral fracture of his right arm and underwent open reduction and internal fixation. He underwent three to four weeks of physical therapy and missed roughly two months of work as a Humboldt County Sheriff's Deputy. Conlin claimed 20% permanent decrease in strength in his tricep and a 15-20% loss of full extension in his arm. He also suffered from atrophy in his arm and has a scar approximately 30 centimeters long and one centimeter wide from the surgery. His expert claimed he was a candidate for scar revision surgery. Farmers disputed Conlin's injuries.

Result

The arbitrator assessed 25 percent comparative fault against Conlin for willingly getting into the vehicle of a driver known to have consumed alcohol. The arbitrator awarded Conlin $374,5116 in total damages, which was reduced to $280,883.