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$2 million reasons why a broken leg from a car accident is a big deal

December 29, 2016 by Steven M. Gursten

Attorney Kevin Seiferheld’s $2 million settlement on behalf of his elderly client with a broken leg is a lesson for all Michigan lawyers to focus on the “life impact” prong of our auto law


Last week, I wrote about how elderly car accident victims have the same rights to fair injury settlements as everyone else. This is especially important because it seems like most personal injury attorneys, mediators, and arbitrators are willing to “buy-in” to this defense argument that the pain and suffering losses for an older person should somehow be discounted compared to the same harms and losses for a younger person. I wrote about how  Joshua Terebelo soundly refuted this common defense argument and secured a recent $300,000 trial verdict for his injured, older client.

Now, Kevin Seiferheld has done it again, with an added exclamation point.

Kevin secured a $2 million settlement for an elderly woman with a broken leg in Oakland County.  The case settled on the day set to begin trial.

The defense in this case (predictably) argued this woman’s injuries were not worth as much, because she was older. She was only 68 years old at the time of her car accident. But the defense attorneys also suggested she sustained a simple broken leg from which she would fully recover. Or even if the leg didn’t get fully better, it wouldn’t matter because it wouldn’t have an appreciable impact on her quality of life – because she was older.

Kevin proved otherwise.

Here are the details of the case.

The defendant, ironically a driver for an inpatient rehabilitation company, failed to make a turn in order to follow a bend in the road and instead, crashed head-on into our client, who was then a 68-year-old nursing instructor. Our client sustained a broken leg which required surgery. The leg did not fully heal and resulted in a poor recovery.

The defendant driver claimed the van she was driving had a steering malfunction – yet her employer’s insurance company conveniently destroyed the van before it could be investigated.

Kevin felt this would result in a spoliation (evidence tampering) instruction had the defendants not eventually admitted fault. Moreover, Kevin discovered the defendant driver had been texting, and possibly had consumed alcohol, before the crash.  This forced the defendants finally into admitting fault. The defense attorneys were also successful in precluding the evidence from the case, so the $2 million settlement did not incorporate aggravating liability factors and was only to the amount of what her injuries and pain and suffering were valued at.

In regards to the injuries, the defense lawyers argued that our client should be able to return to work either as a nurse instructor or in some other similar capacity, as they contended her broken leg would be fully healed in a year. To the extent that she wasn’t able to heal, the defense argued that she would eventually not be much different than any other elderly person in their seventies or eighties; i.e., hobbling around on a cane if she needed one and refraining from some activities (but so does everyone else in their seventies and eighties).

I’m adding the defense arguments into this settlement analysis because it’s important to emphasize that these arguments are being accepted by far too many Michigan personal injury lawyers today.   The idea that older people aren’t entitled to the same settlements as younger people seems to have permeated personal injury litigation.

It should not be accepted as true. It is a ridiculous and offensive argument that’s made by insurance company claims adjusters and defense lawyers who are looking to pay less than the full amount of what they should.

The importance of the life impact prong in Michigan’s auto accident threshold law

Michigan law requires that in order to successfully recover pain and suffering (noneconomic) damages in an automobile accident case, that a person show three things: that the impairments are objectively manifested, that they involve an important body function, and that they affect a person’s normal life.  The third prong, the life impact or lifestyle impact prong, is so important for allowing attorneys to be able to recover the full measure of a person’s harms and losses.

Most auto accident lawyers only focus on the injury itself.  They fail to prove how that injury and the resulting impairments have appreciably altered a person’s life after a car accident compared to her life before.  This is a tragic mistake that results in people with serious and lingering personal injuries being shortchanged when the case goes to a jury or is settled before trial.

In this case, Kevin showed how his client was fully independent and very active prior to the car accident. Her family lived out of state, so she completely relied on herself. After several operations that spurred her need for attendant care for nearly two years, our client lost both her independence and a huge part of her quality of life. The fact that she was on pain medications, had surgeries and was now disabled affected her cognitively as well, causing her depression as the reality of a future with a permanent loss of mobility settled in.

Our client was no longer able to drive her boat, exercise, teach nursing, travel, go on dates, garden, socialize with her friends – or even drive a car – as she did before.

The crux of any auto accident lawsuit is how a lawyer can show the life impact of an injury. Defense attorneys view a case like this one as a case involving a broken leg: What’s a broken leg worth?  The defendants argued that this just a broken leg case, and all the damage was only between her ankle and her knee. To the insurance company, this was  a case about a broken tibia bone for a senior citizen and nothing else.

Compare that with how Kevin presented it. To Kevin, this was a wrongful death case. It was a case about the loss of the person his client once was and who she would never be again. The active, vibrant, healthy and happy woman Kevin’s client was now gone. Kevin argued that his client was now a new person; the type of person she did not choose to be.

In addition, Kevin refused to accept the defense argument that because our client was an older woman, that her injuries and pain and suffering were worth less. He argued – successfully – that age shouldn’t matter: She has only one life. In this case, Kevin showed it was a full and active life. The defendant driver had no right to ruin it, and then be entitled to a discount because the person was older; and a broken leg for an older person isn’t really worth much anyway.

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