Verdict for Defendant Safeco Insurance Company of Illinois

PS Partners/Associate: Gary E. Snodgrass, Partner

We represented: Safeco Insurance Company of Illinois

Venue: Missouri – Howell County Circuit Court


Plaintiff Karen Burkett was a passenger in a vehicle owned by plaintiff and her husband, and driven by her son, on February 22, 2007. The Burkett vehicle slowed down for traffic on Highway W in Thayer, Missouri, when Devin Smith crested a hill and was unable to stop before hitting the rear of the Burkett vehicle. Plaintiff filed suit against Mr. Smith and her underinsured motorist carrier, Safeco Insurance Company of Illinois. Mr. Smith settled with plaintiff for $25,000.00, the limits of his policy of insurance, prior to trial.

Plaintiff claims that immediately after the accident, she tried to get out of the car, but became dizzy and fell to the ground. She did not receive medical treatment at the scene. However, she went to an urgent care center later that day where she complained of neck and back pain. She was diagnosed with cervical, thoracic, and lumbar strains. Plaintiff claims she had shortness of breath immediately after the accident, although shortness of breath was not noted in her medical records until several months after the accident.

After the accident, a chest x-ray was taken of the thoracic spine which showed an elevation of the right hemi diaphragm in the lung.   Plaintiff underwent surgery for her lung condition on July 10, 2007. After the surgery, plaintiff continued to complain of shortness of breath and claimed she is disabled and unable to return to work as a home health care provider due to her condition.   Plaintiff’s medical expenses totaled around $55,000.

Plaintiff was involved in a prior automobile accident in 2005 wherein she complained of abdominal pain and back pain. A CT scan in the emergency room following that accident showed an elevated right hemi diaphragm of her lung. She was diagnosed with a possible contusion to the right lung at that time.

Plaintiff claimed the 2007 accident exacerbated her lung condition as she did not have any complaints or shortness of breath prior to the accident. Plaintiff’s experts Dr. David Dale, her IME doctor, and Dr. Christopher Nicholas, her treating surgeon, testified at trial that the 2007 accident exacerbated her lung condition as she claims she did not have any complaints of shortness of breath prior to the 2007 accident.

Defendant’s experts Dr. Brian Kim and Dr. Joseph Horner testified via videotaped deposition, and Dr. Andrew Martine testified at trial that the 2007 accident did not cause or exacerbate plaintiff’s lung condition as the elevation of the right hemi diaphragm had not changed in the x-rays prior to, and after the 2007 accident. Also, defendant’s experts testified that plaintiff did not exhibit the type of symptoms after the 2007 accident that would be expected if there was damage to the phrenic nerve and the lung condition was exacerbated by the accident.

The jury returned a verdict for the defendant.

Last Demand: $25,000

Last Offer: $0

Past results afford no guarantee of future results.  Every case is different and must be judged on its own merits.

Share thisShare on FacebookShare on Google+Tweet about this on TwitterShare on LinkedInPin on PinterestEmail this to someoneShare on Reddit