North Carolina Lawyers Weekly
Plaintiff, a 52-year-old white female, was injured in an automobile accident in 2007, when defendant ran a red light and collided with plaintiff’s vehicle in a T-bone fashion. Plaintiff sustained a severe whiplash injury and ultimately underwent a cervical discectomy and one level fusion. Plaintiff also developed an aggravation of pre-existing neurologic tremors.
Plaintiff claimed that her accident-related injuries resulted in her being totally disabled from employment. Prior to the accident, Plaintiff had been employed by as a furniture factory worker earning $128 per day.
The tortfeasor vehicle carried minimum limits of liability insurance with Erie Insurance Company, which agreed to tender its limits. Plaintiff was a covered insured under her husband’s policy of underinsured motorist coverage with Progressive Southeastern Insurance Company. Progressive claimed that its UIM policy had limits of 50/100. Progressive was unable to produce an executed Rate Bureau-approved selection/rejection form. Progressive agreed to advance its undisputed coverage of $20,000 (the amount that it claimed plaintiff was entitled to for UIM coverage).
Plaintiff filed a declaratory judgment action in Catawba County alleging that Progressive had failed to comply with its statutory obligations under the North Carolina Financial Responsibility Act, and that plaintiff was entitled to a declaration that Progressive’s UIM policy provided UIM coverage in the default amount of $1 million, and that plaintiff was entitled to arbitrate her UIM claim. Progressive generally denied the allegations in their answer.
Progressive admitted in discovery that it had no proof that a selection/rejection form had been sent to plaintiff’s husband, the policyholder. Furthermore, Progressive was unable to verify that plaintiff’s husband had ever been verbally informed of his options to purchase UM/UIM coverage with limits up to $1 million. Although the broker that sold the policy was not made a party to the action, Progressive threatened to third-party the broker into the suit.
The case went to mediation on March 11, 2010, and the errors and omissions carrier for the insurance broker, Colony Specialty Insurance Company, voluntarily attended the mediation. A settlement was reached where Progressive agreed to pay new monies of $285,000, with the errors and omissions carrier, Colony, contributing an undisclosed amount to the settlement. Plaintiff’s total recovery on her personal injury claim was $335,000.
Settlement Report
Type of action: Automobile/personal injury and insurance-coverage dispute
Injuries alleged: Left paracentral disc herniation at C5-6 with mass effect upon the anterolateral aspect of the cervical cord on the left; transverse fracture of left fifth metacarpal; left wrist pain; right rib pain; back and neck pain; multiple contusions and abrasions; swelling to right hand
Case name: Juanita P. Keller v. Progressive Southeastern Insurance Company
Case number: 09-CVS-227
Court: Catawba County Superior Court
Verdict or settlement: Settlement
Date: March 11, 2010
Amount: $335,000
Special damages: $78,610 (medical specials)
Insurer: Erie Insurance Company, Progressive Southeastern Insurance Company and Colony Specialty Insurance Company
Plaintiff’s attorney: Michael A. DeMayo and Elizabeth G. Grimes, both of the Law Offices of Michael A. DeMayo (Charlotte)
Editor’s note: The information in Lawyers Weekly’s verdicts and settlements reports was submitted by the counsel for the prevailing party and represents the attorney’s characterization of the case.
