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A Successful Search For Additional Coverage Results in Better Outcome and Recovery

Publication Date: May 2013
Volume: 48-9
Author: Lee Tucker
Categories: Verdicts & Settlements, Insurance, Photograph/Illustration, Subrogation

The Accident On August 20, 2012, Vladimir Iyerusalimets was travelling on his motorcycle Southbound on Broadway Avenue in Everett, Washington. As he was crossing into the intersection of 13th Street, a 19-year-old driver, decided to turn left with his Toyota Camry in front of Vladimir’s motorcycle. Vladimir crashed into the rear passenger door of the Toyota and then was launched 20 to 30 feet into the air. He landed in the intersection.

Several liability witnesses confirmed that the Toyota attempted to accelerate through the intersection in order to beat Vladimir, who had already entered the intersection. Witnesses also saw the motorcycle collide into the Toyota and Vladimir fly over the car. One witness confirmed that Vladimir was at least 10 feet above the Toyota at one point.

As he lay motionless on the ground, people gathered around him in the street. Some people took video of the accident scene which was eventually a very important piece of evidence in Vladimir’s settlement video to USAA. Some witnesses later became quite upset that people chose to videotape Vladimir on the ground. However, that video footage turned out to be very important in favorably resolving the case. The driver of the Toyota was cited by the police for failure to yield on a left turn. An Everett detective investigated the accident because of the severe injuries sustained by Vladimir. The detective concluded that the Toyota driver had not consumed any alcohol and was not under the influence of drugs at the time of the crash. However, some witnesses testified in statements to us that they felt the driver and the passenger seemed to be joking around about the entire situation after the collision.

Later, the driver used Vladimir’s cell phone to contact Vladimir’s wife of two years, Maryna. As paramedics attended Vladimir’s injuries, including an open abdominal wound, degloving injury to his right groin, multiple pelvic fractures, sacrum fractures, right femur fracture, left tibia open fracture, left fibula fracture, and multiple left foot fractures, Maryna came to the scene of the accident. There, she witnessed Vladimir’s open abdominal and leg wound; she also saw a great deal of blood around Vladimir’s body, his tibia bone protruding out of his left leg, and blood vessels and muscle tissues just underneath Vladimir’s clothing.

Vladimir was taken by paramedics along with Maryna to Providence Medical Center in Everett. After the ER physicians attempted to treat his multiple injuries, it was obvious he needed to be treated at Harborview Medical Center (HMC) in Seattle. Vladimir was then airlifted by helicopter to HMC. Upon arrival, Vladimir was immediately operated on by trauma surgeons to clean, debride, and close the open abdominal wound. By the second day at HMC, orthopedic surgeons also operated on Vladimir to stabiliize his pelvis and sacrum with multiple rods and screws.

A second team of orthopedic surgeons later stabilized the comminuted fractures to Vladimir’s right femur shaft and left tibia shaft with rods and pins. Finally, after several more days at HMC, another orthopedic team stabilized Vladimir’s left foot with pins, screws and plates. Vladimir had multiple comminuted fractures to the metatarsals in his left foot as well as a comminuted fracture to his left toe. Ten days later, Vladimir was discharged to Manor Care Rehabilitation Center in Lynnwood, Washington with medical expenses already in excess of $200,000.

Vladimir spent the next 2½ months at Manor Care in a private rehabilitation room. During the first few weeks, Vladimir needed fluid bags coming from his lower abdomen to drain his abdominal wounds. Maryna also moved into Vladimir’s room in order to help take care of him. She would wake up each morning and head to Boeing to work and then return by early afternoon to spend the afternoon and night with her husband. She cared for all of his basic needs along with the skilled nursing staff at Manor Care. Vladimir was required to undergo extensive physical therapy and was finally weight bearing in November – three months after the collision.

He was discharged at the end of November because his own health insurance carrier, Blue Cross/Blue Shield of Illinois, limited residential rehabilitative services to three months.

Life after Manor Care

With only half their income, Vladimir and Maryna had to find an apartment in a very short amount of time after Vladimir was discharged from Manor Care. This put an enormous amount of stress on both Vladimir and Maryna. In addition, Vladimir had to manage getting the proper equipment outfitted to his apartment since he was still in need of special services for his injuries. Prior to the collision, Vladimir also worked at Boeing on the 787 project. Vladimir and Maryna had also been in contract to buy their first home.

Although they faced serious challenges, Vladimir and Maryna were extremely resourceful and they found an apartment near Boeing in Everett so Maryna could go to work and still get home to take care of Vladimir. Maryna’s day began at 4 a.m. and she returned home by 2 p.m. each day. Both have a great deal of faith and religious conviction that seemed to help sustain them during their struggles with Vladimir’s injuries. By January 2013, Vladimir returned to Boeing to work at his same job; however, he needed accommodations and could do light duty work only.

Videography

We hired Justin Boyd, videographer, who created a settlement video of Vladimir and Maryna. Justin started within the first 3 weeks of the accident when Vladimir was still recovering from his surgeries. Justin was extremely detailed and captured the all-consuming impact of the injuries. We conducted the interviews at Manor Care where Vladimir was confined to his bed for several weeks. Vladimir was not able to freely move in and out of his bed and he needed a trained professional or machine to lift him out of bed. In addition, Justin interviewed a close friend of Vladimir and Maryna. The video was a very powerful tool.

Police Reports/Accident Video

There was a YouTube video of the accident scene which we found online. The video captured the moments immediately after the accident and showed Maryna arriving at the scene. We were very fortunate to have the video. In addition, the police report included hundreds of photographs of the accident scene.

Medical Records

We immediately obtained thousands of pages of medical records and imaging studies from all of Vladimir’s treatment providers. We closely analyzed those records and provided selected records to use in the settlement video. Justin used the key medical documents and imaging studies to show Vladimir’s multiple skeletal fractures.

The Surgeons

We spoke to all of the surgeons who operated on Vladimir in order to better understand Vladimir’s injuries. One of the biggest struggles early in the case was obtaining the necessary information from the surgeons regarding Vladimir’s prognosis. Unfortunately, the orthopedic team at HMC was not very cooperative. We spoke to the surgeons by phone within the first few months of the accident. But HMC’s fees were very high, and the surgeons seemed threatened by our discussions.

The USAA Policy

USAA confirmed early that there was significant insurance on the driver’s personal liability policy. Soon after USAA discovered the nature and extent of Vladimir’s injuries, USAA disclosed the policy limits of their insured. We found out in late August 2012 that the 19-year-old driver was a ward to the policyholder who held a $1,000,000 umbrella and a $300,000/$500,000 underlying liability policy. Vladimir’s claims would be covered under a maximum of $1,300,000 in liability coverage. There was $200,000 more in liability coverage for any other individual injured in the same accident.

Regardless of the insurance coverage, we conducted an asset check of the policyholder. The policyholder had assets and we considered filing suit against him under the family car doctrine.

Family Car Doctrine

We determined from our research that the policyholder could be vicariously liable for Vladimir’s injuries. We interviewed the 19-year old driver and his passenger several times and, with the help of our private investigator, we learned that:

(1) The policyholder owned the Toyota Camry and maintained it; (2) The Toyota Camry was used for the general use, pleasure, and convenience of the family. The driver used the vehicle to drive to work, go out with friends, and look for apartments, (all activities that fall under “general use, pleasure and convenience”); (3) At the time of the collision, the driver was a member of the policyholder’s household/family for which the vehicle was maintained; and (4) The driver had the express consent from policyholder to use the Toyota Camry on the day of the collision.

Considering and applying one of the leading family car doctrine cases, Kaynor v. Farline, the policyholder’s Toyota Camry was a family car under the family car doctrine and the policyholder would be vicariously liable for our clients’ damages.

We urged the policyholder to seek a personal attorney outside USAA’s insurance adjuster; however, we were never contacted by the policyholder’s attorneys.

Case Evaluation and Settlement

Vladimir’s economic losses were: Economic damages: • Past Medical Expenses: $330,000 • Past Wage Loss: $11,200 • Apartment expenses/month (starting December 2012): $1,500 • Loss of contract with his new home: Earnest money • Blue Cross Blue Shield Subrogation Interest: $272,000

We presented a policy limits offer of settlement to settle all of Vladimir’s claims related to the applicable USAA insurance. We also presented a $200,000 policy limits offer of settlement to resolve all of Maryna’s claims for the emotional distress she suffered at the accident scene. Part of our offer was to ask for additional sums from the policyholder considering our clients’ collective damages.

Considering the challenges of the $270,000 Blue Cross/Blue Shield ERISA subrogation interest, our strategy was to obtain the USAA policy limits for Vladimir and then reduce the Blue Cross Blue Shield as much as possible to maximize his recovery.

USAA eventually tendered the $1,300,000 policy limits for Vladimir in exchange for Maryna sharing in that recovery and a full release of all claims against their policyholder.

Conclusion

Once the claims were settled with USAA, we turned to Blue Cross/Blue Shield related to the subrogation interest they asserted. The BC/BS policy was an ERISA plan that stated BC/BS would be entitled to a dollar for dollar recovery. We first asserted Vladimir was entitled to a full waiver because he was not made whole by the recovery of the policy limits; however, BC/BS adjusters in Washington rejected our request. BC/BS hired Kentucky counsel to represent their subrogation interests. We again asserted that considering our client’s damages, the value of the case being in excess of the policy limits, and under the Arkansas Department of Health and Social Services v. Ahlborn, CGI v. Rose and U.S. Airways v. McCutcheon cases, BC/BS was not entitled to its full dollar for dollar subrogation. After several weeks of back and forth, BC/BS eventually accepted $110,000 as their full subrogation interest.

By January 2013, we were able to provide our client with an additional $162,000 out of the subrogation monies.

Vladimir and Maryna were eventually able to buy a new home and Vladimir continues to recover from his injuries. They are expecting their first child in the Fall of 2013.

Adam Morrow joined me in representing the Iyerusalimets.

Lee Tucker, WSAJ EAGLE member, practices personal injury law at his firm, The Tucker Law Firm, PLLC in Seattle.