Uninsured Case

Insurance attorneys, including those handling injury claims will be both glad and sad to know about a recent case out of the Corpus Christi Court of Appeals. The case is styled, Lilly Helene Schaffer, M.D., v. Nationwide Mutual Insurance Co. and Nationwide Property and Casualty Co. The opinion was issued in May 2013.
The bad news was that a jury awarded zero dollars to a claimant (Schaffer) for pain and suffering. The good news was that the Corpus Christi Court of Appeals said that based on the injuries and the testimony of the witnesses that the award of zero damages was against the great weight of the evidence and remanded the case on this issue.
Here is some relevant information:
In February 2006, Schaffer, who was driving north-bound on United States Highway 77 and was beginning to merge onto Interstate Highway 37 in northwest Corpus Christi, Texas, collided with a truck driven by Brady Lovins. Schaffer alleges that she suffered injuries to her lower back as a result of the accident. To treat her injuries, Schaffer underwent: physical therapy, first in April to June 2006 and, again, from September 2007 to January 2008; a series of lumbar steroid and other injections in the summer and fall of 2006 and throughout 2007; and, finally, lumbar fusion spinal surgery in February 2008. Schaffer alleges that she continued to suffer severe pain even after her surgery.
In connection with the accident, Schaffer sued Lovins for negligence. Schaffer also sued Lovins’s employer, Tracey Barrett d/b/a Barrett Pools, for vicarious liability because Barrett owned the truck Lovins was driving. Finally, Schaffer sued Nationwide for underinsured motorist benefits owing under her auto and umbrella policies with the company.
Schaffer’s underinsured benefits claims against Nationwide were tried to a jury. The issue at trial was whether Lovins’s negligence was the cause of the accident and whether and what damages Schaffer suffered as a result of the accident. After the close of evidence, the jury was questioned as to whose negligence caused the accident. The jury answered that both Lovins’s and Schaffer’s negligence were proximate causes of the accident. The jury then apportioned responsibility for the accident, finding that Lovins was seventy-five percent responsible and Schaffer was twenty-five percent responsible. Finally, the jury was questioned as to damages. The jury awarded zero damages for past and future physical pain, past and future earning capacity, past and future physical impairment, and future medical expenses. The jury awarded Schaffer $257,131.41 for past medical expenses. Schaffer filed a motion for new trial, arguing that the evidence did not support the jury’s zero-damages awards for physical pain, earning capacity, and physical impairment. The trial court denied the motion for new trial.
The court spent several pages of its opinion reviewing the law in this area and the evidence and concluded by saying:
“Having reviewed all of the evidence relevant to the jury’s zero-damages finding, we believe this finding was against the great weight and preponderance of the evidence. The evidence that Schaffer was injured in some way and suffered some pain as a result of the accident was undisputed. …
We reverse the judgment of the trial court, and because both liability and damages were challenged, we remand for a new trial on all issues.”
The fact that the lawsuit was against her on insurance carrier and that a jury, after hearing all the evidence of her injuries and treatment, decided against awarding at least a nominal amount for her pain and suffering is baffling. Of course, that is why the case was appealed and why the appeals Court reversed the trial Court.

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