Public Insurer Successfully Defended in an Underinsured Motorist Claim February 2013
Brian W. McElhenny, a partner in Goldberg Segalla’s Municipal and Governmental Liability Practice Group, successfully defended a provider of workers’ compensation for public employers in a supplementary uninsured/underinsured motorist (SUM) arbitration instituted by an injured police officer.
The claimant sought additional compensation from the SUM coverage applicable to him in this matter as a result of injuries sustained while responding to a call for assistance. While on duty as a police officer, he was operating a patrol car and was struck by a van making a U-turn. He complained of neck, shoulder, and knee pain; received a course of treatment; and was ultimately submitted to arthroscopic surgery to his shoulder. His pain continued, and he was again subjected to surgery by undergoing joint reconstruction. Continued pain also resulted in steroid injections after both surgeries.
The claimant claimed that as a result of continued pain, he was forced to retire. He instituted an action against the van driver and settled for $293,000. After settlement, it was agreed that there was $1 million in SUM coverage applicable to this underinsured claimant. The matter was presented to an arbitrator through the New York SUM Arbitration Tribunal.
After presenting numerous medical exhibits and hearing testimony of the claimant, the tribunal held in February 2013 that the $293,000 was adequate compensation and the SUM coverage would not come into play. It was found that he would have retired based upon his age, and the medicals did not substantiate any permanent incapacity to engage in the performance of his duties.