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Virginia Lawyers Weekly: $10M umbrella policy could apply to personal injury claim

$4,000,000 Settlement
Jul 25, 2013 ARTICLE SOURCE: http://valawyersweekly.com/2013/07/22/10m-umbrella-policy-could-apply-to-personal-injury-claim-4000000-settlement/

On June 28, 2006, plaintiff, a 55-year-old Harvard-educated economist working at the International Monetary Fund, suffered a severe traumatic brain injury when his car was broadsided by a speeding vehicle as he was crossing over Lee Highway just north of the I-66 overpass in Arlington. Defendant claimed plaintiff was contributorily negligent by failing to yield the right of way, but eyewitnesses testified the defendant was driving at an excessive speed, estimated up to twice the legal limit and weaving around traffic. The case was originally filed by another attorney, who was forced to nonsuit the action when his experts were struck by the court on the morning of the trial.

The case was re-filed, but underlying personal injury action was delayed in order to file a declaratory judgment action to resolve the issue of insurance coverage. The defendant was driving his fiance's vehicle, which was owned by the the fiance and her father and which was covered by a $250,000 auto policy. The father also has his own AIG $10-million-dollar personal umbrella policy. The policy defined an "insured person" to include any person "given permission by you or a family member to use or that is responsible for the use" of the vehicle. The fiance did not live with the father and did not qualify as a family member.

AIG refused to provide coverage under the umbrella policy. Plaintiff filed a declaratory judgement action against AIG in Fairfax Circuit Court, arguing that the defendant driver qualified as an insured person as one "responsible for the use of the vehicle," both under the plain language of the policy, and alternately, because the language was ambiguous and should be construed against AIG to provide coverage. The circuit court, per Judge Lorraine Nordlund, determined that the plain language of the policy afforded the plaintiff coverage, and the Supreme Court affirmed Judge Nordlund, determining that the $10,000,000 umbrella policy applied. Roanoke attorney Frank Friedman successfully argued for the affirmation on the appeal.

Plaintiff was prepared to overcome the contributory negligence defense due to the reckless, willful and wanton conduct of the defendant's driving behavior, under the ruling of Griffin v. Shively, 227 Va. 317, 315 S.E.2d 210 (1984). The crush damage to the vehicles, the skid marks and the resting locations of the vehicles undermined the defendant's claims and corroborated eyewitnesses' estimates of speed far in excess of the speed limit. This was further borne out of the investigation of plaintiff's expert witness on accident reconstruction.

Plaintiff was an economist who had a successful career with the World Bank and the IMF, traveling extensively and working with foreign governments in negotiating lending programs and providing technical advice on issues of fiscal management and policy. At the time of his injury, he was earning $263,919 annually. Following impact, he was found unconscious and unresponsive, with a Glascow Coma Scale score of 3. He suffered severe traumatic brain injury, with multiple cerebral contusions and diffuse axonal injury, multiple hemorrhagic shear injuries, a subarachnoid hemorrhage and an intraventricular hemorrhage. Initial serial imaging revealed brain continued to swell from the injury. His injuries left him unable to return to his previous employment, although he continued to read academic journals and newspapers, and can communicate with family and friends.

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