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Emerson v. USAA Casualty Insurance Co.

Superior Court of Rhode Island

July 31, 2015

OWEN EMERSON
v.
USAA CASUALTY INSURANCE COMPANY

Providence County Superior Court

For Plaintiff: Joyce A. Faraone, Esq.

For Defendant: Katherine A. Merolla, Esq.

DECISION

LANPHEAR, J.

Before the Court are Plaintiff Owen Emerson's (Emerson or Plaintiff) Motion to Vacate, and Defendant USAA Casualty Insurance Company's (USAA or Defendant) Motion to Confirm the Arbitration Award issued on February 25, 2015. Jurisdiction is pursuant to G. L. 1956 § 10-3-11.

I

Facts & Travel

This matter arises out of an underinsured motorist arbitration for injuries sustained during a motor vehicle accident. On August 15, 2010, Plaintiff, then aged twenty-five (25), was operating a pedicab at the intersection of Memorial Boulevard and Spring Street in Newport, Rhode Island. While stopped at the intersection, the pedicab was impacted from behind by a motor vehicle driven by Rachel Defaria. Emerson was thrown approximately fifteen (15) feet from the site of the impact and landed on his side and hands. When paramedics arrived at the scene, Emerson was standing next to his pedicab with "no [obvious] injuries.'' (Pl.'s Ex. 2.) Emergency personnel conducted a preliminary examination and then transported Emerson to the Emergency Department at Newport Hospital.

Emerson underwent diagnostic x-ray imaging to investigate moderate pain in his head and right wrist. The treating physician, Dr. Vanhemelrijck, diagnosed Plaintiff with a wrist sprain, and consulting physician Dr. Knapik noted that x-rays revealed a "corticated density [] just distal to the dorsal aspect of the radius on the lateral view." (Pl.'s Ex. 2; Diagnostic Imaging Consultation.) Dr. Knapik postulated that the "fragment [was] likely related to an old injury, " and no further action was taken to resolve the anomaly. Id. Emerson was given Motrin and discharged.

Three days later, on August 18, 2010, Plaintiff presented at the office of Dr. Foster of Danbury Orthopedics complaining of increasing pain, discomfort, and stiffness allegedly stemming from the accident. Records indicate that Dr. Foster read the x-rays taken at Newport Hospital and concluded that the area could require a "stabilizing procedure, " but no immediate action was taken. (Pl.'s Ex. 3.) Emerson made two subsequent visits to Dr. Foster on August 31, 2010 and December 27, 2010. During this period, Emerson was subjected to an MRI, which confirmed the presence of a bone fragment and a scapholunate ligament tear. (Pl.'s Ex. 4.) Even after reading the MRI, Dr. Foster declined to prescribe any treatment beyond a wrist splint, which was provided to Plaintiff.

From December 2010 to March 2012, the record demonstrates that Plaintiff was employed as a bartender, carpenter, garden laborer, and furniture designer and builder. He also engaged in regular conditioning exercises, and Plaintiff has admitted to performing push-ups and handstands as part of this routine. Despite the physical nature of Plaintiff's work, he did not see another physician for the alleged injury until March 2012, when he accompanied his mother to her appointment at the office of Dr. Joseph DiGiovanni, a partner at Danbury Orthopedics. During that visit, Dr. DiGiovanni allegedly discussed a "clunk" in Plaintiff's wrist, but did not immediately pursue treatment. Instead, Plaintiff continued his carpentry and gardening employment until April 2014, when he returned to Dr. DiGiovanni with continuing wrist issues. Dr. DiGiovanni determined that the bones in Plaintiff's wrist had become misaligned and conducted an outpatient wrist fusion procedure in May 2014, four years after the alleged injury. (Pl.'s Ex. 9.)

As Plaintiff sought treatment for his injury, the insurer for the tortfeasor responsible for the pedicab collision tendered its policy limit of $25, 000 on May 18, 2012. Thereafter, the underlying action accrued to Plaintiff for underinsured motorist benefits, which he instituted against USAA in the Newport County Superior Court on or about March 6, 2013. The parties agreed to arbitrate the matter in a letter dated April 3, 2013, and a three-member arbitration panel-consisting of Plaintiff's designated arbitrator, Defendant's designated arbitrator, and a third, neutral arbitrator-was selected to hear the matter pursuant to the agreement.

Discovery was conducted following the selection of the panel. Defendant took Plaintiff's statement under oath, and the neutral arbitrator granted the Defendant's Request for Production of Documents seeking medical records. Plaintiff's counsel also discussed the possibility of taking the depositions of Dr. Foster and/or Dr. DiGiovanni with opposing counsel, but the defense resisted. Consequently, Plaintiff submitted a Motion to Compel the Deposition of Dr. Craig Foster to the neutral arbitrator on or about May 29, 2014. (Pl.'s Ex. 6.)

On or about September 8, 2014, the neutral arbitrator phoned Plaintiff's counsel and allegedly stated:

"[h]e had a conversation with counsel for USAA, Katherine Merolla, Esq., regarding the taking of the depositions of Dr. Foster and Dr. DiGiovanni, that the medical reports and records were being admitted at the Arbitration hearing without objection by the Defendant, that there was no dispute with regard to the medical records and the injuries sustained by Mr. Emerson and therefore, there was no need for Plaintiff's counsel to take the deposition of either Dr. Craig Foster or Dr. Joseph DiGiovanni since the medical records and treatment were not in dispute and were all coming in without objection." (Post-Award Motion to Vacate Award and Reopen Arbitration at 4).

As a result of this conversation, Plaintiff's motion was deemed "unnecessary" and never submitted to the panel for consideration. Plaintiff's counsel took no further action to press the issue, and the parties advanced to the ...


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