Kady v. Encompass Insurance

$800,000 Verdict

Date of Verdict: March 1

Court and Case No.: C.P. Montgomery County No. 2016-10340

Judge: Gail A. Weilheimer

Type of Action: Insurance coverage

Injuries: Spinal injury

Plaintiffs Counsel: Timothy G. Daly and Michael A. Clemente, Daly & Clemente, King of Prussia.

Plaintiffs Expert: Dr. Mark Kurd, orthopedic surgery; Bryn Mawr.

Defense Counsel: Andrew J. Kramer, Kane, Pugh, Knoell, Troy & Kramer, Norristown.

Defense Expert: Scott Rushton, orthopedic surgery; Wynnewood.

Comment:

On Oct. 15, 2013, plaintiff Karin Kady, 42, owner of a restaurant-staffing business, was driving in the parking lot of a restaurant, in King of Prussia. As she approached the valet line, the driver's side of her sedan was broadsided by a sport utility vehicle that had been traveling through an aisle. She claimed back injuries.

Kady settled with the driver, Rachel Wallen, whose insurer agreed to pay $45,000 from a policy that provided $50,000 of coverage.

Kady then sued her insurer, Encompass Insurance Co., alleging breach of contract and seeking to recover her underinsured-motorist policy of $100,000.

Kady's counsel argued that Wallen failed to see her car and failed to avoid striking it.

Wallen testified that it was Kady who failed to see her vehicle, and that Kady should have yielded to her in order to prevent the collision.

Following the accident, Kady drove home and then presented to an urgent-care facility, where she was examined and released.

Two weeks later, Kady, complaining of headaches and pain to her neck and low back, presented to an orthopedic surgeon, who, through MRIs, diagnosed her with cervical, thoracic, and lumbar sprain and strains; an aggravation of a prior cervical laminectomy and extensive cervical degenerative disc disease; aggravation of pre-existing spondylolisthesis at L5-S1; post-traumatic headaches; and post-concussion syndrome; and post-traumatic occipital neuralgia.

In the ensuing years, Kady had an epidural injection and physical therapy, which included massage and exercise, and consulted with an orthopedic surgeon. She was examined by Encompass' expert in orthopedic surgery, who confirmed her injuries and attributed them to the accident.

The physician determined that Kady required surgery, and elected to oversee her care. In April 2016, Kady underwent a fusion at L5-S1 by the surgeon. In the ensuing months, she consulted with her surgeon, treated with physical therapy, and later performed home exercises.

Kady's surgeon causally related her injuries and treatment to the accident, and opined that her condition was permanent.

Kady testified that it has been difficult running her restaurant-staffing business because of her injuries. She had started the business shortly before the accident. Kady claimed that her ongoing neck and back pain had also made it difficult sleeping, sitting and standing for long periods, and walking long distances. She sought damages for past and future pain and suffering.

Encompass' expert in orthopedic surgery, who reviewed Kady's records, testified that her surgery, overall treatment, and ongoing complaints were directly related to her longstanding, degenerative cervical and lumbar condition. The expert determined that Kady only had suffered a strain and sprain to the low back from the accident, which later resolved.

The jury found that the tortfeasor was negligent and her negligence was a factual of Kady's injuries. Kady was found not negligent. She was determined to receive $800,000, which the court later molded to $750,000, to reflect the tortfeasor's $50,000 insurance policy payment.

This report is based on information that was provided by plaintiffs counsel. Defense counsel did not respond to calls for comment.

—This report first appeared in VerdictSearch, an ALM publication