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Kerry Connolly v. Peerless Insurance Company

July 10, 2012

KERRY CONNOLLY, PLAINTIFF,
v.
PEERLESS INSURANCE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Spatt, District Judge.

MEMORANDUM OF DECISION AND ORDER

This is a breach of contract action,based on a motor vehicle accident. The action is by the plaintiff Kerry Connolly ("Connolly" or the "plaintiff") against the defendant Peerless Insurance Company ("Peerless" or the "defendant"). The action is brought to recover Underinsured Motorist Benefits under an insurance policy issued by Peerless with regard to an accident that occurred on October 13, 2007. In this motor vehicle accident, Connolly was a front seat passenger in a car driven by James Sandnes, her husband, which was stopped for a red light at an intersection, when it was hit in the rear by a Pontiac motor vehicle operated by Juan Umana. The Umana vehicle had an automobile liability insurance policy with GMAC Insurance. The GMAC insurance policy had a per person policy limit of $25,000. Connolly settled her personal injury claim with Umana and GMAC Insurance by receiving the full amount of the coverage in the sum of $25,000.

Relevant to the issues in this case, Peerless had issued a Personal Protection Policy to the plaintiff and her husband, James Sandnes, for the period from May 25, 2007 to May 25, 2008 (the "Peerless Policy") . The Peerless Policy provided Supplementary Uninsured/Underinsured Motorists ("SUM") benefits, with a $500,000 accident policy limit. The SUM coverage insuring agreement provided, in relevant part, as follows:

II. Damages for Bodily Injury Caused by Uninsured Motor Vehicles

We will pay all sums that the insured or the insured's legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by an accident arising out of such uninsured motor vehicle's ownership, maintenance or use, subject to the Exclusions, Conditions, Limits and other provisions of this SUM endorsement. (Emphasis supplied).

The intent and purpose of the SUM coverage as it relates to the No Fault Serious Injury situation is set forth in the following provision in the "SUM Endorsement":

This SUM coverage does not apply:

3. For non-economic loss, resulting from bodily injury to an insured and arising from an accident in New York State, unless the insured has sustained serious injury as defined in Section 5102(d) of the New York Insurance Law.

So that up to the policy limits of $500,000, the Peerless SUM coverage fills in the gap between a tortfeasor's own insurance coverage and the amount that the insured recovers as damages from the tortfeasor. In this case, the tortfeasor carrier paid to the plaintiff the sum of $25,000, the total amount of its coverage for this motor vehicle accident.

I. THIS MOTION

The defendant Peerless is moving for an order pursuant to Federal Rules of Civil Procedure (Fed.R.Civ.P.) 56, granting Peerless summary judgment, requesting a determination that the plaintiff Kerry Connolly did not suffer a "serious injury" as defined in New York Insurance Law § 5102(d). The defendant requests that the complaint be dismissed, or in the alternative, "dismissing any claim for recovery of damages because of emotional distress allegedly caused by Peerless' denial of coverage and the time lost by the plaintiff from her practice as an attorney in litigation of this action and for the recovery of any costs incurred (Dft's Memorandum in Support 1).

II. THE DEFENDANT'S CONTENTIONS

Peerless contends that the accident that occurred on Saturday, October 13, 2007 was a minor automobile accident in that the plaintiff's vehicle was stopped and the Umana vehicle, insured by GMAC Insurance, "was going less that 4 mph." (Dft's Memorandum in Support at

3). The plaintiff's vehicle was not pushed into the intersection; the airbag was not deployed; and the vehicle suffered only minor damage, limited to the rear bumper, muffler and tailpipe. No one called the police and the police never came to the scene. After the drivers spoke, the plaintiff and her husband proceeded on their way to a dinner party at a friend's house in Westhampton. After the dinner party Connolly and her husband drove home in their automobile.

Connolly then went to work, as usual, the following Monday. Connolly never went to a hospital. She first consulted Dr. Akifa Samdani on October 18, 2007, five days after the accident. Dr. Samdani was the only doctor who treated Connolly for injuries related to this occurrence for at least the first year after the accident. He initially treated the plaintiff for a neck sprain, which was the only pain Connolly was suffering from.

For the first time on a visit to Dr. Samdani on August 14, 2008, ten months after the accident, Connolly complained of pain in the right shoulder which had started in July, 2008, nine months after the accident. At that time, there was no neck pain radiating into the shoulder. On December 2, 2008, Connolly was treated by Dr. Stephen Fealy, "her close personal friend" for the condition of her right shoulder. Her second visit to Dr. Fealy was six months later. Dr. Fealy testified at his deposition that he could not determine if any of her injuries were caused by the auto accident. This opinion is supported by the expert report of David L. Gushue, PHD, a Biomedical engineer, who reconstructed the accident. Gushue determined that the collision would not have caused the injuries claimed by Connolly.

The defendant further contends that, with "likely probability" the injury and pain to Connolly's right shoulder was caused by a weightlifting regime she engaged in prior to and after the accident. Prior to the accident she suffered the same injury to her left shoulder incurred while weightlifting. On May 10, 2007, Dr. Fealy performed an operation on Connolly's left shoulder, very similar to the operation he later performed on Connolly's right shoulder, three years after the accident.

Peerless retained Dr. A. Robert Tantleff, a radiologist, to review Connolly's MRIs. He determined that "any issues" related to Connolly's right shoulder were similar to "the issues" related to her left shoulder and were not causally related to the accident. Dr. Tantleff also determined that the conditions of the plaintiff's spine were "normal degenerative changes," which are age-appropriate and consistent with the individual's age and the normal aging process and "not causally related to the date of the incident . . . requiring years to develop." (Dft's Memorandum in Support at 7, 8). Therefore, the defendant's counsel concludes that "there is no evidence such that the trier of the fact . . . could reasonably determine that Connolly suffered a 'serious injury.'" (Dft's Memorandum in Support at 8).

III. THE PLAINTIFF'S CONTENTIONS

Contrary to the defendant's analysis, as to the type of impact in this accident, the plaintiff's counsel states that the Sandnes vehicle was "suddenly struck in the right rear . . . propelling the Sandnes vehicle partially off the ground." (Pltf's Memorandum at 1). Bay Ridge Lexus informed Sandnes that there was extensive damage underneath the vehicle. On October 15, 2007, the first business day following the accident, Sandnes reported to Peerless that Connolly was suffering from back pain. She was given the first available appointment with Dr. Akifa Samdani on October 18, 2007. Connolly complained of right sided neck pain radiating into the shoulder and lower back pain. Dr. Samdani wrote a prescription for physical therapy and made a diagnosis of "whiplash-cervical sprain and trigger pt trapz (trapezuis)". The plaintiff received physical therapy on October 24 and October 30, 2007, for lower back pain. On August 18, 2008, the plaintiff informed Dr. Samdani that the pain in her back by her right shoulder had "moved to an intense pain in front of the shoulder." An MRI of the lumbar-sacral spine on August 29, 2008 revealed a central L5-S1 disc herniation; flattening of the thecal sac; and a L4-L5 disc bulge. Connolly was suffering from intense pain in the front of her right shoulder, diagnosed as right shoulder tendonitis.

On June 18, 2009, twenty months after the accident, the plaintiff had continued low back pain with radiation to her left leg. She also had left arm numbness since the accident. Connolly underwent physical therapy for the right shoulder from August 20, 2008 through June 25, 2009, a period of ten months. An MRI performed in June 30, 2009 showed C6-C7 disc herniation.

Further, counsel for the plaintiff asserts that the prior condition of Connolly's left shoulder is unrelated to the injuries sustained in this occurrence. Counsel also denies that weightlifting caused either shoulder condition, which opinion is explicitly confirmed by Dr. Fealy in his deposition testimony. After many treatment sessions, on February 25, 2011, under anesthesia, Dr. Fealy performed a right shoulder arthroscopic manipulation; a right shoulder arthroscopic rotator interval capsule release; a right shoulder arthroscopic subacromial decompression; and an acromoplasty. On April 26, 2011 the plaintiff still suffered from decreased flexion and rotation of the right shoulder. Dr. Fealy concluded that the car accident of October 13, 2007 was a competent producing cause of Connolly's injuries. Significantly, Dr. Fealy further testified that Ms. Connolly has suffered permanent injuries as a result of the motor vehicle accident of October 13, 2007. The range of motion of her right shoulder continues to be limited and certain movements cause pain. Dr. Fealy also testified that he expects that in the future the plaintiff will have intermittent lack of full range of motion of the right shoulder and unpredictable episodes of pain. (See Exhibit G - Fealy Declaration).

The plaintiff was also treated by Dr. Christopher Lutz, a physiatrist, for her cervical and lumbar spine conditions. Dr. Lutz testified that the injuries to Connolly's cervical and lumbar spine were not typically degenerative but rather, as a result of the accident. In a June 30, 2009 MRI, Dr. Lutz noted a C6-C7 disc herniation and a bulging disc at C3-C4. He also confirmed that Connolly was suffering from an acute left radiculopathy.

More recently, on March 2, 2011, Dr. Lutz noted that Connolly had cervical spine range of motion restriction, with rotation to the left with end range discomfort, parathesis into the left upper extremity and only 4/5th strength in the left biceps. On December 7, 2010 and again on March 10, 2011, Dr. Lutz performed fluoroscope guided epidural steroid injections with epiduralgram. On both procedures he visualized that Connolly had left lower limb and back symptoms, with injection of the steroid followed by pain relief during the anesthetic phase. Physical examinations by Dr. Lutz on April 13, 2011, September 1, 2011 and November 9, 2011 revealed pain and restrictions and a positive Dural Tension Sign, which indicated to him that the plaintiff's condition was not degenerative in nature but instead, resulted from an acute traumatic injury.

IV. TWO DOCTORS WHOSE REPORTS WERE SUBMITTED BY DEFENDANT'S COUNSEL, HAVE CAUSALLY RELATED

THE PLAINTIFF'S INJURIES TO THE ACCIDENT

It is customary, in a case involving a claim for personal injuries, for the defending counsel to request and receive, medical examinations of the claimant by doctors of their choice. This practice is invariably followed. The reason, of course, is for the defense to ascertain the nature and extent of the claimed injuries, and also, to prepare a defense to amelerorate or nullify the damages. At first blush, that customary practice was followed in this case. In its Memorandum in Support, Peerless states that it retained Dr. A. Robert Tantleff, a radiologist, to review the Connolly MRIs.

However, in its Memorandum in Support, the defendant pointedly did not mention two other doctors who examined the plaintiff, ostensibly on behalf of Peerless. These doctors are Dr. P. Leo Varriale, an orthopedic surgeon, and Dr. John J. Brennan. Both of these doctors, were apparently retained by Peerless or its counsel or some other company or firm associated with Peerless, to examine the plaintiff and report their findings. Plaintiff's counsel identifies these two physicians in their Memorandum in Opposition with the words, "Two of defendant's own doctors have verified plaintiff's injuries." Id. at 10. The reports of these two doctors were submitted by defendant's counsel to the plaintiff's counsel.

However, strangely, in the defendant's Reply Memorandum of Law, the defendant's counsel states that, "Contrary to Connolly's arguments, neither these two doctors are Peerless employees or agents and neither one of them was retained by Peerless for this action." (Reply Memorandum at 8). In order to clarify this mystifying situation, the Court issued a short form order, which provided in part:

In opposition to the defendant's motion, among a number of arguments, the plaintiff also cites to (1) a report by Dr. P. Leo Varriale, M.D. dated November 16, 2009 (Meisenheimer Decl., Ex. P); and (2) a report by Dr. John J. Brennan, M.D. dated July 14, 2011. The plaintiff states that these reports are by the defendant's "own doctors", in that the plaintiff was examined by these doctors at the request of the defendant's counsel. (Pl.'s Opp. at 10). However, strangely, in its reply memorandum dated December 12, 2011, the defendant states that "Contrary to Connolly's arguments, neither of these doctors are Peerless employees or agents, and neither one of them was retained by Peerless for this action." (Def.'s Reply Mem. at 8).

In a personal injury case, these examinations by the defendant's physicians are routine happenings; almost always ordered by the defendant's counsel. In this case, following these examinations, both doctors rendered reports. Notwithstanding these apparently established facts, the defendant's counsel now denies that either of the doctors were retained by Peerless and apparently denies that either of the doctors examined the plaintiff for the defense in this action.

The Court requires further clarification with respect to these two medical reports. Accordingly, the Court directs the parties to each submit a letter by July 3, 2012 at 5:00 pm, not to exceed 2 pages in length, identifying at whose request and for what purpose(s) Drs. Varriale and Brennan examined the plaintiff and provided their written reports; who retained the doctors; who paid their fees; what is claim number 403169680 cited on each report; and what relation to this action is the National Claim Evaluation, Inc. of Jericho, New York, referenced to in the report of Dr. Brennan. No replies will be accepted.

In response to the Court's Order, the defendant's counsel sent a letter to the Court dated July 3, 2012. The letter stated, in part, the following response:

Our firm represent defendant PEERLESS INSURANCE COMPANY ("Peerless") in the above-entitled action. We send this letter in response to your Honor's Short Order of July 2, 2012.

As an Officer of the Court, I advise that Drs. Varriale and Brennan and National Claim Evaluation, Inc. ("National Claim") were not retained by or on behalf of my firm. I also confirmed that Peerless' claims unit handling this Supplementary Uninsured Motorist ("SUM") claim did not retain Dr. Varriale, Dr. Brennan, or National Claim. I also confirm that no one from or on behalf of our firm, and no one from Peerless' claim unit handling ...


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