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Injury victim wins PIP verdict against State Farm; judges overturn award of fees

Henry Saad, insurer's best friend, strikes again.  This week Dennis O'Leary's attorney fee award against State Farm was over-turned in the Court of Appeals with a one-sided, insurance-friendly interpretation of the facts and law which is typical for an opinion signed by Judge Saad.

O'Leary was hurt in a car wreck on June 19 of 2009.  By November, he had undergone two back surgeries, and he endured a third in 2012.  Athough State Farm admitted that he was injured and originally paid his related medical, the adjuster balked when the surgeries were recommended.  She criticized the "unfocused" records of the surgeon, rejected his opinion that trauma had aggravated O'Leary's existing degenerative disc disease, and refused to pay.  Four months later, O'Leary was sent to the insurer's hand-picked IME doctor.  Not surprisingly, he offered the opinion that O'Leary's back troubles were unrelated to the wreck and his opinion became the basis for State Farm's defense.

O'Leary filed a lawsuit to collect his No Fault Personal Injury Protection medical expenses and ultimately achieved a verdict in excess of $300,000.00.  The jury apparently agreed with his treaters on a point that the defense experts were forced to concede: a severe motor vehicle trauma can be a "significant contributing factor" in the need for medical treatment of a middle-aged man's aging spine.  O'Leary then asked the Court to award attorneys' fees on two separate grounds:  the Defendant had rejected a case evaluation award, requirng the award of reasonable fees; and in addition State Farm's initial rejection of the claim and the four month delay in securing even an IME in support of State Farm's (ultimately losing) position, had been unreasonable.  The Judge agreed that the delay was unreasonable and awarded more than $200,000.00 in fees, and State Farm appealed.

In an opinion clearly demonstrating an insurance, anti-victim bias, the Court ignored the ostensible purpose and policy of the no fault act (i.e., the prompt payment of reasonable and necessary payment of medical expenses for insured individuals where motor vehicle trauma is a "significant contributing factor."  It ruled that the adjuster was not unreasonable in criticizing the treating surgeon's notes and "focus."  It cited "inconsistencies" in the various doctors' reading of the radiology studies, even though the jury had found the State Farm paid doctors' opinions not credible. If fly-specked the attorneys' description of the years of litigation services to identify inconsistencies more apparent than real (for example suggesting that the attorney could not have been preparing for a deposition if his client wasn't present).

Ultimately, the higher court reversed the award of attorneys' fees and sent the case back to the lower court, five years after benefits were rightfully due, to issue a new finding on attorneys fees owed, starting only with the rejection by State Farm of the case evaluation.  The court ruled that the several months of delay in payment occasioned by an adjuster who substituted her own, incorrect, opinion for the opinions of the treaters, was not "unreasonable delay."  The case will now be cited regularly by insurers to deny their oblgation to pay fees, where an adjuster is dilatory in paying benefits but can ultimately find a paid testifying doctor to support her denial.


Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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