MOTORCYCLE PASSENGER SEVERELY INJURED WHEN HARLEY FORCED OFF HIGHWAY
During the summer of 2013, our client, a retired registered nurse, was a passenger on the back of her friend’s Harley-Davidson motorcycle. They were taking a short ride in the Fredericksburg area on a 55 mph highway on a sunny weekend afternoon. The highway lanes were separated by a divided grassy median. At the same time, a college student was exiting a nearby neighborhood and had crossed into the divided median, paused, and then proceeded out in the same direction of travel as the Harley. The college student never saw the motorcycle and meandered from the left lane over to the right lane which was already occupied by the Harley-Davidson cycle. The experienced motorcycle operator tried to move to the very narrow paved shoulder but it was too narrow, and the motorcycle was forced off the paved shoulder onto a grassy area. The front wheel of the Harley dipped suddenly in a small culvert suddenly ejecting the driver and our passenger client.
Our client suffered major injuries including a C-7 (neck) transverse fracture, 11 left and 4 right-side rib fractures, a collapsed lung, several spine fractures, liver contusions, a left abdominal wall hematoma, fractures of her thoracic spine, and a closed head injury.
Our client was taken by ambulance to Mary Washington Hospital and then was transferred to MCV in Richmond and was in-patient for about a month before her release. Besides all of the traumatic injuries that she was treated for, our client immediately developed nausea and difficulty with digesting her food and lost significant weight over the weeks in the hospital and after her release.
Despite being seen by doctors and many disciplines including gastroenterologist, orthopedic doctors, physical rehabilitation medicine doctors, it took many months and various tests for the doctors to conclude she suffered an injury to her vagus nerve, which is a key nerve that controls the contraction of the digestive organs that process food. Ultimately her gastroenterology specialist determined that the cause of her chronic nausea permanent vagus nerve damage, which is not capable of surgical correction, so he recommended a vagus nerve gastric stimulator be implanted as a new technique that has helped some patients alleviate chronic nausea from this type chronic problem.
In early 2013, our client underwent the implantation of the stimulator and although it did not resolve our client’s nausea, there were signs that it might assist help control the worst symptoms.
DAMAGES AND LOSSES
Our client’s past medical expenses exceeded $250,000.00. Even though she had recently retired at the time of the motorcycle accident, many of her peers obtained part-time or full-time consulting work as she had taught registered nursing for many years and also had assisted hospitals with moving to electronic medical record management. And, she had been considering going back to work on a part-time basis before the accident ruined her quality of life.
KEY LEGAL STRATEGIES
In order to best present her tremendous losses relating to her quality of life, her medical expenses, and her ability to return to work at least part-time, we reached out to a number of specialists. We obtained a narrative medical report from her gastroenterologist about the vagus nerve injury and his recommendation for a vagus nerve stimulator implantation.
Our team of Virginia personal injury attorneys retained a life care planner to create a medical cost projection of the medical cost projection of the medical expenses that our client would likely have to expend in the remaining years of her life expectancy. This medical cost and medical expense projection was presented to the insurance companies. Secondly with regard to the loss of potential future income, we retained a vocational expert, the type of forensic expert who looks at a person’s wages and wage earning ability, and creates a report after interviewing the client, evaluating their work history, and things like that. That report revealed that our client had the earning capacity as a skilled R.N. to earn substantial earnings even on a part-time basis before the cycle accident, therefore she had suffered a substantial loss of earning capacity.
The primary liability insurance was the college student’s parent’s policy and we contended that the college student was negligent in failing to see the motorcycle and forcing it off the highway. The operator of the Harley had a modest motorcycle liability insurance policy also. Fortunately, our client not only maintained a $500,000 “underinsured motorist coverage” on her car insurance policy, but also had the foresight to get an umbrella policy that well before this accident that provided $1,000,000.00 in umbrella underinsured (UIM) coverage.
So, the complicated legal questions were whether our clients own underinsured motorist policy would apply, and whether we could combine those policies to achieve a level of at least 1.5 million dollars in underinsured motorist coverage for her serious life changing injuries. After obtaining the policies during the lawsuit and studying the policies, we took the position that her own insurance carrier had a duty to provide up to $1,500,000.00 in total “UIM” coverage because the umbrella policy included underinsured motorist coverage. In advance of the scheduled jury trial, we agreed to voluntary mediation with all the insurance defense attorneys presided over by a retired Virginia judge.
The case did not resolve at the mediation, but within a week after we successfully negotiated a $1,000,000.00 total settlement, with money being paid by four different insurance policies. We worked with our client for about a year and a half on every detail of this case to assure that the settlement would provide adequate compensation for her future medical needs and for the change in her quality of life, and also negotiated some reductions of outstanding medical bills and liens, that increased our client’s recovery.
Richard N. Shapiro and Randall E. Appleton, Virginia Personal Injury Attorneys
Roz H., Paula M. Paralegals
Fredericksburg/Spotsylvania Cir. Court, VA (March, 2015)