Facts

Plaintiff David Zimmermann was involved in a rear-end accident, and claimed severe injury as a result. After settling with the underinsured tortfeasor's insurance carrier, the American Automobile Association, he presented a policy limit claim with his own carrier, Wawanesa General Insurance Co., for underinsured motorist benefits. The policy limit was $85,000. Wawanesa rejected the demand, contending that the elbow injuries were not caused by the accident. Wawanesa offered $15,000 to settle. At the UIM arbitration, the arbitrator awarded $55,000.

PLAINTIFF'S CONTENTIONS:
In November 2010, plaintiff's 2000 Silverado truck was rear-ended. The truck had a fixed steel bumper, which showed only slight damage. Three days after the collision, plaintiff, who had no prior elbow problems, reported to the Veterans' Affairs Hospital Emergency Room complaining of bilateral, tingling elbow pain. Plaintiff claimed this was due to him bracing his arms against the steering wheel when he saw the vehicle coming at him in his rear view mirror. Plaintiff contended five VA physicians ultimately diagnosed him, plus two outside orthopedic surgeons, with bilateral epicondylitis also known as tennis elbow, which all seven doctors opined was caused by the accident. After failed injections, therapy and painkillers, the doctors opined plaintiff required surgery on both elbows.

Wawanesa offered $15,000 to settle, which was solely for his resolved neck and back injuries, with an offer of zero for the claimed elbow injuries. At the UIM arbitration, the arbitrator awarded $55,000 on top of the $15,000 paid by AAA, i.e., about 400 percent Wawanesa's offer. Plaintiff contended that Wawanesa's reserves and its adjuster's authority were $15,000, which precluded Wawanesa from making a reasonable offer.

Plaintiff claimed that Wawanesa's experts initially opined "no elbow injury" but after reviewing the records three days later flip-flopped to "no causation," gave firm opinions before receiving any records, and that Wawanesa's biomechanical expert agreed that tennis elbow can be caused by a single trauma. Plaintiff argued that the arbitration award was res judicata and collateral estoppel, which precluded a re-trial of the facts established by the award. Plaintiff contended that Wawanesa should have paid its policy limit immediately upon presentation of the claim. Forcing its long time policyholder to go to the expense of UIM arbitration, and recovering nearly four times the amount of the offer, was insurance bad faith.

DEFENDANT'S CONTENTIONS:
Defendant contended that it was in good faith at all times, and that the issue of causation was at all times a genuine dispute.

Settlement Discussions

Defendant presented a CCP 998 offer to compromise in the amount of $1,001. Plaintiff presented a CCP offer to compromise in the amount of $249,999.

Injuries

Plaintiff claimed he sustained permanent tennis elbow, and that after failed injections, therapy and painkillers, that he required surgery on both elbows.

Result

Defense verdict. The jury found against plaintiff's claim of insurance bad faith.

Other Information

Plaintiff had sought punitive damages, as well as Brandt fees. The court, following defendant's motion for partial nonsuit regarding the same, dismissed the punitive damage claim. According to plaintiff, the court, in lieu of granting plaintiff's request for judicial notice of the arbitration award, excluded all references and questions regarding the arbitration award, and instead re-tried the underlying injury case from scratch. Post-trial, several jurors told plaintiff's counsel that the only slight damage to the truck justified Wawanesa distrusting the claimed life-changing elbow injuries. FILING DATE: March 15, 2013.

Deliberation

one hour

Poll

12-0 (no bad faith)

Length

seven days