18 Trial Lawyer • Fall 2022 Cynthia Newton By Cynthia Newton OTLA Guardian On February 13, 2018, bicyclist Tom Smith, a 52-year-old husband, father of two and product management professional, was out on a training ride from his home in Washington County. He pulled up in the bicycle lane and stopped at a red light at an intersection. On his left a vehicle stopped at the light in the vehicular traffic lane. He and the driver glanced at each other. When the light turned green, Smith and the driver proceeded into and across the intersection. On the other side, the driver made a right turn to enter the driveway of a local business and in doing so made a right turn into and across the bicycle lane directly into Smith, who struck the passenger side of the vehicle and fell to the ground, striking his head on the pavement. He told the responding officer he had head pain but declined medical treatment at the scene. Smith injured his left shoulder, low back and toe, bruised his thigh, and sustained a head injury. His shoulder, low back, toe and thigh all healed quickly. His head injury, however, did not. Bicyclists (like Smith), pedestrians and scooter riders are vulnerable road users. Even helmeted users (like Smith) often experience head impacts causing traumatic brain injury. Some brain injuries are severe, with clear evidence of loss of consciousness, coma, posttraumatic amnesia, brain bleeds or skull fracture. In those cases, evidence of the injury is visible and proving damages is relatively straightforward. Frequently however, evidence of the injury is less apparent, even invisible. But mild TBIs, concussions and their cousin, post-concussion syndrome, can nevertheless cause profound life-long injury and symptoms. Long after fractures mend and abrasions and lacerations heal, the effects of invisible mild TBIs often linger with subtle but persistent and pervasive manifestations, affecting all areas of life, including work, play and relationships. Capitalizing on their invisibility, insurers fight cases involving mildTBIs and concussions, minimizing the injury’s af fects and under valuing claims . However, presented well, jurors and arbitrators can and do understand the seriousness of this injury and award fair compensation. The process Smith’s auto carrier’s personal injury protection (PIP) coverage was primary and paid medical expenses until he was prescribed an intensive brain injury program at which point it ordered an IME and cut off benefits. The PIP carrier paid $8,529, refusing to pay the remaining available $6,471. Based on Smith’s parttime work for his wife’s health product company, the PIP carrier also paid $27,156 in lost income. Smith’s health insurer paid medical expenses next in line and the defense insurer paid co-pays and deductibles totaling $11,114. We presented a $100,000 policy limits demand and the driver’s auto carrier tendered the underlying limits. Later, we made a demand to Smith’s UIM carrier for the available $300,000 limits. We claimed total economic damages of $286,938. That included past medical expenses of $53,341, future medical expenses of $24,136 and lost income of $209,461. The total claim value was $573,876. Applying credits of $146,791 (underlying adverse carrier BI limits of $100,000, PIP medical payments of $8,529, PIP wage loss of $27,156, and defense PIP medical payments of $11,114), yielded a net claim value of $427,076. We demanded the $300,000 UIM limits.TheUIMcarrier offered $100,000. We prepared for an arbitration. Brain Injury in Vulnerable Road User Cases
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