Appeals Court rejected plaintiff’s claim for $138,000 when damages totaled just $77,500
If ever a case demonstrated the audacity of personal injury lawyers and their clients, the Colorado Supreme Court will soon consider such a case in Levy v. American Family.
In 2004, Susan Levy was a passenger in a vehicle involved in an accident. Levy was injured, and Jessica Fink, driver of the other vehicle, was found to be at fault.
American Family Insurance insured the driver of the vehicle in which she was riding and paid $18,838 toward Levy’s medical expenses.
Levy then asked American Family for permission to settle her remaining claims with Fink and her insurer. American Family granted Levy permission to settle and waived its contractual right to be reimbursed by Fink’s insurer for Levy’s medical costs. Levy settled with Fink and her insurer for an additional $23,763.
Levy, represented by attorney Gregory Chernushin, sued American Family for additional damages, and an arbitration panel found that her damages totaled $77,500. American Family accepted the arbitrator’s calculation and simply asked to deduct the amounts it had already paid for Levy’s medical treatment and the damages that Levy received from Fink’s insurer – leaving a balance of $34,898 to be paid to Levy.
Audaciously, Levy sued for the full amount, asserting that she was entitled to be paid twice for medical treatment and other damages that American Family and Fink’s insurer had already paid.
(Remember that American Family could have received $18,838 from Levy when she settled with Fink’s insurer but instead waived that right, allowing Levy to keep the full settlement.)
Fortunately, the Colorado Court of Appeals rejected Levy’s claim, but she and her attorney are now appealing to the Supreme Court.
If Levy and her attorney have their way, she would receive $138,038 in compensation for just $77,500 in damages.
