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Defense Verdict Obtained in Binding Arbitration

January 1, 2003

Robert M. Scherk of Murchison & Cumming's San Diego Office recently obtained a defense verdict in a binding arbitration in a personal injury action where a 59 year old female plaintiff sought damages for personal injuries, pain and suffering, loss of earnings and property damage all of which, plaintiff alleged resulted from an automobile accident where there was no contact between plaintiff's vehicle and defendant's vehicle.

Plaintiff and defendant were traveling in opposite directions on a winding road when defendant came upon a piece of plastic or rubberized piping in the road. Unable to avoid running over the piece of pipe, defendant struck it with his truck at which time it bounced up towards plaintiff's vehicle, striking plaintiff's left front hubcap and bumper guard and causing the hubcap to come off of plaintiff's car.

The incident did not cause plaintiff to strike any portion of the interior of her vehicle or to lose control, and there was no contact between the two vehicles. Plaintiff claimed the piece of pipe weighed at least 50 pounds and came "flying out of defendant's pickup truck" before striking her vehicle. The defendant and his passenger claim that the pipe weighed no more than 10 to 12 pounds and had never been in the defendant's truck prior to the incident. After the incident plaintiff drove some five miles to McDonald's for breakfast before going home and calling the CHP to have a report prepared. The report supported defendant's version of the accident causing plaintiff to contact the CHP officer's supervisor, attempt to have the CHP officer fired, and write a lengthy letter to her state senator. Plaintiff also prepared her own supplement to the CHP report containing her version of the events.

After the subject incident, plaintiff had 73 chiropractic visits over a one and a half year period and alleged that she was unable to work as a substitute teacher for some five months. Defendant claimed that plaintiff could not possibly have been injured by this incident, that her medical treatment was fraudulent on its face, and that she had no significant prior work history as a substitute teacher to support her loss of earnings claim.

The parties agreed to a binding arbitration with a high and low figure. The arbitrator found that plaintiff failed to sustain her burden of proof with respect to determining that the defendant was negligent, and that even if she had sustained her burden of proof with respect to liability, the issue of causation was not established by any evidence presented by the plaintiff "nor as seen in the light of everyday common sense."

The arbitrator also stated that plaintiff failed to prove causation and that the bulk of plaintiff's claimed damages were speculative and "not proven by any standard approaching the preponderance of evidence."

A defense verdict was rendered on the day following the binding arbitration.