School Librarian Injured in Passenger-van Accident

Expert says plaintiff could require additional surgery
$395,000 settlement

The 54-year-old plaintiff, a part-time assistant librarian at a university, was a passenger in a van that serviced the university employees but was not owned by the university. The van was involved in a two-car accident in January 2005, in which the plaintiff sustained a four-part comminuted fracture of the major proximal humerus.

She underwent surgery, in which a plate and 10 screws were inserted for stabilization.

After a few months, the plaintiff returned to her part-time job at the university but could not return to her second part-time job. She continued to be symptomatic from the fracture, with an AMA impairment rating of 24 percent of her right upper extremity and 14 percent of the whole person.

After the third-party carrier agreed to pay its policy limits of $20,000, the plaintiff arranged a three-panel arbitration with the underinsurance carrier of the van. Because the plaintiff was not riding in her employer’s vehicle, and because she had no cars in her household, she was permitted to make her underinsurance claim on the vehicle in which she was riding, that of a contractor hired by her employer. As a result, the plaintiff was not barred by the workers’ compensation exclusivity provision (see Berger v. H.P. Hood Inc., 416 Mass. 652), nor by G.L. c.175, Sect. 113L, which would have obligated the plaintiff to obtain UM benefits from a car in her household, if there had been one.

Prior to the scheduled arbitration, the plaintiff’s counsel took the deposition of Dr. Gary Perlmutter, who evaluated the plaintiff on two occasions. Perlmutter opined that the plaintiff had a right proximal humerus fracture, full thickness rotator cuff tear and right superior labral tear. He said future surgery may be needed in order to remove a screw and repair the plaintiff’s rotator cuff.

One week before the arbitration, the underinsurance carrier agreed to settle the case for $375,000, providing the plaintiff with a total settlement of $395,000.

• Type of action: Motor vehicle negligence
• Injuries alleged: Right proximal humerus fracture, full
  thickness rotator cuff tear, right superior labral tear
• Name of case: Withheld
• Court/case no.: Withheld
• Tried before judge or jury: N/A (arbitrated)
• Special damages: $60,000
• Amount of settlement: $395,000
• Date: November 2007
• Attorney: Marsha J. Alban, Feinberg & Alban, Brookline
  (for the plaintiff)