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Minor Concession by UIM Insurer Prompts Opening for New Trial (PA)

November 17, 2016

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A U.S. Magistrate judge for the Middle District of Pennsylvania recently granted a new trial, albeit on a very narrow issue, to two plaintiffs who lost their federal lawsuit against the Cincinnati Insurance Co.  In  <em><a href="">Angino v. Cincinnati Insurance Co.</a>, </em>Richard Angino, a lawyer from Harrisburg, Pennsylvania, and his wife sued their insurance company for compensation from injuries in an underinsured motorist context.  Angino alleged permanent neck and back pain that affected his ability to work as an attorney, and sought compensation for lost wages as a result of his alleged permanent disability.
The insurance company argued that Angino’s permanent neck and back pain were not the result of the car accident, but rather were caused by the 75-year old’s advanced age.  However, the insurance company conceded that Angino did indeed suffer from temporary back pain caused by the accident.  A federal jury determined that Angino’s permanent neck and back pain were not caused by the car crash and thus found for the insurance company.
However, U.S. Chief Magistrate Judge Martin C. Carlson of the Middle District of Pennsylvania granted permission for Angino to pursue a narrow avenue of post-verdict relief in the form of a new trial on the sole issue of his temporary back pain.  Because the insurance company conceded that Angino’s temporary back pain was factually caused by the car accident, Judge Carlson granted Angino the opportunity to pursue a new trial where the only claim at issue would be damages related to Angino’s temporary back pain.  In his ruling, Judge Carlson affirmed the portion of the jury’s verdict that sided with the insurance company concerning Angino’s permanent disability claims; and found that Angino’s permanent back and neck injuries were the result of his advanced age as opposed to the car accident.  Judge Carlson noted that this conclusion was confirmed by Angino’s own medical records, as well as his treatment and physical therapy history that were inconsistent with a claim of permanent disabling pain caused by the accident.
Courts often express frustration with attorneys who are reluctant to make even minor concessions during discovery.  This case illustrates the pitfalls of such a concession. The insurer's concession that plaintiff's back injury was related to this accident has resulted in a new trial, which could bear significant exposure before a sympathetic jury.  Thanks to Greg Herrold for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.

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