TOTAL SETTLEMENT: $18,000
$17,000 of the settlement is from the property owner’s liability coverage. $1,000 was from the Medical payments (“Medpay”) coverage.
The settlement is before deduction for attorney’s fees and expenses. Most cases result in a lower recovery.
It should not be assumed that your case will have as beneficial a result.
Nautilus Insurance Company paid this settlement.
The photo below shows Nautilus’ home office.
Nautilus is a W.R. Berkly Company.
I did not take attorney’s fees on the Medpay portion of the claim.
Some Florida accident attorneys do. I do not.
DATE OF SETTLEMENT: May 2015
DATE OF ACCIDENT: October 4, 2013
AGE, SEX, OCCUPATION OF CLIENT: 67 years old/ Female/Retired.
CAUSE OF INJURY: Nelly tripped on the vinyl landscape edging at the southeast portion of the exterior of a South Miami restaurant. It caused her to fall and sustain multiple injuries.
LIABILITY: My position is that liability is clear. On the date of her fall, Nelly was a customer eating at a restaurant. The restaurant leased the premises from the landowner.
The following photograph shows Nelly, smiling and enjoying her dinner with her family, at the insured’s premises minutes prior to her fall.
As she exited the property, Nelly tripped on a dark vinyl landscape edging that was in disrepair and protruding into the pedestrian path. This was a hazard, especially at night-time.
Nelly fell sometime around 9:45 p.m. It was dark and the black edging was hard to notice. It was foreseeable that customers visiting the premises could trip when using the walkway.
The property owner knew or should have known a dangerous condition existed on the property, yet failed to correct it.
I consulted with a senior construction manager who stated that a landscape vinyl edging should have been noticed during regular inspection and maintenance of the property.
He said that the hazard had been there for a significant time prior to the way that it looked on the date of the incident.
The photographs below were taken days after the accident. They were taken in daylight.
Therefore, it was brighter than on the night of the incident. However, it shows that the vinyl landscape was protruding into the path of travel enough to cause serious injury.
It was not sticking out enough to be expected by a pedestrian, such as Nelly, who was walking on the sidewalk.
The picture below was taken on October 12, 2013, days after her fall took place. It shows that dark vinyl landscape edging was in such a state of disrepair that it was dislodged from the ground.
I took some other photos (below) on October 7, 2013, at 9:49 pm. They show how difficult it would be for anyone to notice the black edging during similar lighting conditions.
The lighting at a trip and fall accident scene may affect whether an injured person has a case. It may also affect the case value.
NATURE OF INJURY:
Nelly was wearing her glasses when she fell. As a result of her fall, she sustained a blow to the head. It resulted in complex lacerations to her right lower eyelid and cheek area.
Her eye glasses broke and cut her on impact. She required multiple stitches below her eye.
She also suffered contusions to her left wrist and left knee.
Paramedics did not come to the accident scene. She did not take an ambulance to the hospital.
She was driven to the emergency room of South Miami Hospital. A family member took a photograph which shows Nelly’s open wound.
It showed a good deal of blood on her face. Below is a picture of her glasses which broke during the fall.
MEDICAL TREATMENT/FACILITIES:
1. South Miami Hospital.
As stated above, on the date on her fall, Nelly was taken to the emergency room of South Miami Hospital. The records show she had two lacerations to her cheek, under the right eye, extending to the malar region.
One laceration was described as a deep 2.5 cm complex laceration of the maxilla and infraorbital area of the right cheek with loss of soft tissue.
The other laceration was measured as a 1 cm in length, extending perpendicularly to the first laceration. Smaller lacerations were also present.
Nelly’s wound was cleaned, a dressing and ice were applied to her face. An examination of the left wrist was positive for tenderness and limited range of motion.
Tenderness of the knee was also noted. A CT scan was ordered to rule out intracranial hemorrhage as well as x-rays to rule out fractures.
The x-ray of the wrist was positive for soft tissue swelling. The next morning, at 4:49am, a wound repair was performed by Dr. Castrellon, a plastic surgeon.
He notes on his preoperative report that there was an area of soft tissue loss. Lidocaine as well as an infraorbital nerve block were used during the procedure.
Dr. Castrellon advised that due to the nature of the injury and despite the best attempts to repair the laceration, soft tissue would probably demarcate and devitalize tissue resulting in an open wound days after the repair.
Risks of infection were also discussed. Upon release from the hospital, Nelly was given pain medications and instructions to refrain from strenuous activities.
She was instructed to change her dressing daily, keep the wound clean and to follow-up with a physician.
I sent the South Miami Hospital records and bill to Nautilus Insurance Company. Their South Miami hospital bill was $9,503.00.
Nelly received stitches to her face, as well as the bruises and inflammation to her eye area.
2. Center for Excellence in Eye Care
After the fall, Nelly’s near vision was negatively affected. She began to suffer from “eyes dryer than before” and sensitivity to light. She also noticed her right lower lid pulling down. On November 19, 2013, she received an evaluation from Dr. Junhee Lee.
The examination of her eye lid was positive for an irregular thickened scar, causing right lower lid retraction and exposure of the right eye.
She was advised to massage the area and to follow-up in one month. The risks associated with additional surgical revision of the scar (z-plasty) were discussed at length with Nelly during this visit, as well as in her subsequent follow-up appointments.
Her last appointment with Dr. Lee was on April 8, 2014. She did not have a scar revision.
MEDICAL BILLS:
The total billed charges that were submitted to Humana for Nelly’s treatment as a result of this incident were $11,884.88. Nelly had health insurance through her Humana HMO Medicare plan. Humana paid $2,588.37, for which they have a right to subrogation pursuant to the health insurance contract.
Under Florida law, Nelly is entitled to recover for the benefits paid by the health insurer since the health insurer has a right of subrogation. The injured victim is not entitled to recover the total billed charges.
She also spent $299.93 of her own money to replace her eye glasses. I sent the property owner’s insurance adjuster a copy of the receipt.
FUTURE MEDICAL TREATMENT:
Nelly will need follow-up care on an as needed basis to manage her dry eye and headaches. Dr. Lee states that she will also require a scar revision, a procedure, to have the scar removed for which she will have to pay out of her own pocket.
She has been informed by her health plan that they do not cover the costs for the z-plasty, which Dr. Lee recommended. Generally in Miami, Florida, the costs for this type of procedure, range from $1,000 to $3,000.
This is according to according to a local plastic surgeon’s website. Anesthesia and outpatient surgery center costs are separate from the doctor’s charges.
LIFE EXPECTANCY:
Approximately 19.1 years.
INTANGIBLE DAMAGES:
Nelly still suffers from the injuries she received as a result of her fall. She feels she is permanent disfigured and even with surgery, her face will never be the same.
Prior to this accident she never felt self-conscious about her appearance. She enjoyed going out with her family and taking part of social activities, just as she was doing on the day/night of her fall.
After her fall, at times, she avoided going out and interacting with others, because of the way other people reacted to her appearance. Nelly feels very self-conscious about the way she looks.
Her injury has been not only a source of pain, but also embarrassment. She wears concealer to try to cover the scar, however, she feels that it is still very noticeable.
She also avoids sun exposure and wears sunscreen, to avoid darkening of the scars. The next photograph was taken November 5, 2014. It shows how the scars looks today.
This incident has caused a large amount of pain and stress for Nelly. In addition to significantly reducing Nelly’s activities of daily living, the trauma resulting from the fall has had a dramatic effect for her and her family life.
She feels it created unnecessary stress on her family. The frequency and severity of Nelly’s prior headaches were aggravated from this incident, for which she takes Advil. She uses artificial tears daily, as her eye becomes very dry.
Even reading a book for more than a few minutes causes eye discomfort. Nelly claims that she is left with permanent scarring and discoloration on her face.
I sent the claims adjuster a memorandum which discusses and cites studies on the negative impact of facial scarring have on the lives of those affected by facial scarring.
Medicare Beneficiary – Issues
My client, the restaurant guest, is a Medicare beneficiary. We confirmed that Medicare did not have a lien.
I also requested that Nautilus’ claims adjuster confirm the ICD-9 codes that it was reporting to Medicare. Medicare uses the ICD-9 codes to deny future medical treatment that was paid for in the settlement.
The adjuster confirmed via email to me that they presented these ICD-9 codes for the following injuries to Medicare:
- Wrist sprain
- Open wound cheek
- Contusion eye
My client will not have to worry about Medicare denying future treatment that it thinks is related to the accident.
About Nautilus Insurance Company
Nautilus Insurance Company insured the property owner. Nautilus is the 14th largest products liability insurer in Florida.
The 2014 FLOIR Annual Report lists its Florida yearly written premium as $3,334,688. It had 1.9% market share in Florida.
However, this was not a products liability case. Nautilus Insurance Group provides excess and surplus lines commercial property and casualty insurance coverage.
Nautilus Insurance Group (Nautilus Insurance), a W. R. Berkley Company, writes on behalf of Nautilus Insurance Company and Great Divide Insurance Company.
Nautilus Insurance is average in terms of offering fair value for Florida injury claims.
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