Underinsured Coverage And Pain And Suffering

Mansfield lawyers who handle underinsured motorist claims will make claims for medical bills, lost wages, and paid and suffering. So,what about the paid and suffering aspect of a claim – is it compensable? The general rule is Yes. However, a Houston Court of Appeals case styled Calderon v. Home State County Mutual Insurance Company is worth reading with regards to pain and suffering as an element of damages.
After he was involved in a car accident, Cesar Calderon sued Home State to recover under his underinsured motorist policy. A jury awarded Calderon some of the medical expenses that he claimed to have incurred following the accident, but it denied his request for past and future pain and mental anguish. Calderon contested the jury award of zero damages for pain and mental anguish as against the great weight and preponderance of the credible evidence. Finding no error, this court affirmed the jury finding.
Christine Verhardt was driving when took her eyes off the road for four to five seconds, and rear-ended Calderon, who had stopped due to traffic congestion. Immediately after the accident, Calderon was dizzy and felt pain in his shoulder, neck, and legs. About 20 minutes later, he felt pain in his back, and had trouble standing. An ambulance transported him to the emergency room. The EMS report noted lower back pain with no abnormalities, and upper right leg pain. The damage to Calderon’s car cost $3,610.92 to repair.
At the emergency room, technicians took x-rays of Calderon’s neck, right shoulder, and right hip; all showed no fracture or dislocation. Calderon’s neck x- ray showed “loss of normal cervical lordosis which may be secondary to position and/or muscle spasm” but found that “otherwise, the vertebral bodies and their appendages are normally aligned.” Further examination showed no obvious abnormalities in his neck. Calderon continued to complain of back pain, decreased spinal range of movement, and muscle spasms, but his spinal alignment remained normal. At the emergency room, no neurological deficits were noted. His symptoms improved markedly during his stay in the emergency center. Doctors diagnosed Calderon with back and neck pain and a bruised shoulder. Calderon was discharged later that evening with instructions to follow up with another doctor as needed.
At trial there was a lot of testimony about tests and medical procedures that Calderon underwent. In the lawsuit, both sides had medical experts testify. At trial, the experts sharply disputed Calderon’s medical condition and the MRI test results. Based on the MRIs taken a week after the car accident, Dr. Dennis, expert for Calderon, testified that the MRI of the lower back at disc L5-S1 revealed a “relatively good result” and that the protrusion at L5-S1 did not affect the nerve. But Dr. Dennis opined that Calderon’s pain stemmed from the car accident. He noted that the type of numbness and tingling that Calderon reported would be painful to an individual. On cross-examination, Dr. Dennis admitted that due to Calderon’s negative neurological exams, there was no objective verification for Calderon’s complaints of pain.
Dr. Bloom, an expert for Home State, reviewed the medical records and MRIs taken a week after the accident. Dr. Bloom observed the disc protrusion at L5-S1, but like Dr. Dennis, noted no neural compression caused by it. He opined that a protrusion not impinging on the nerve would not cause harm. He explained that disc degeneration is a disc dehydration process that occurs with aging; in his opinion, Calderon had some disc degeneration at the L1-2 and L5-S1 discs due to the normal aging process.
Calderon contended the judgement should be reverse and remanded for a new trial because the jury’s refusal to award pain and suffering damages is against the great weight of the evidence, especially given its award for medical expenses.
The jury is the sole judge of the credibility of the witnesses and the weight of their testimony. The jury may believe one witness and disbelieve another and resolve inconsistencies in any testimony.
The process of awarding damages in a personal injury case for amorphous, discretionary injuries such as pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, non-pecuniary loss. It is particularly within the province of the jury to set the amount of damages for pain and suffering.
In some cases, the injuries have objective manifestations that plainly support some award for pain and suffering. In cases with these sorts of objective physical manifestations, a jury’s failure to award damages for pain and suffering, while simultaneously awarding medical expenses, is error. For example, objectively verifiable injuries like bone fractures, nerve damage, burns, lacerations, torn muscles, and concussions have been held to support an award of pain and suffering.
But in other cases, where the objective indicia of injury are less obvious or entirely absent, a jury may disregard purely subjective complaints that are necessarily speculative and incapable of direct proof.
Although the jury could have believed that Calderon suffered from back and neck pain, they also could have concluded, based on the disputed evidence, that Calderon failed to show that his ongoing debilitating pain was due to the car accident. The jury reasonably could have determined that Calderon’s later symptoms were attributed to a degenerative condition and not the car accident. Because the evidence conflicted at trial, with some evidence challenging any award for pain, it was within the jury’s province to decline to award damages for physical pain and mental anguish.