Motorcycle Accident — Yamaha
The client was operating his Yamaha Virago northbound on the primary road and was slowly following behind another vehicle that was turning right in an easterly direction at a 4-way intersection. Another car, a Honda Accord was traveling westerly on the secondary road and was stopped at the intersection. The motorcycle continued straight when the other vehicle turned right and was suddenly struck on its right side by the Honda whose operator had failed to see the motorcycle and immediately proceeded into the intersection once the other vehicle turned right. The police arrived and reported that there was no indication of excessive speed by the motorcycle and that the Honda’s operator was at-fault for failing to yield.
The client was transported by ambulance to a local hospital. He required ten sutures to close two lacerations near his left eye. The client also sustained a concussion, a dislocated collarbone, an upper back strain, a separated left shoulder and a small puncture wound in his left Achilles heel. Finally, he also received some road rash/road burn to his left shoulder, left elbow, right elbow and right wrist. Mr. Arnel immediately settled the claim for the entire amount of the available policy limits and his client fully recovered in several months.
Motorcycle Accident — Honda
The client’s Honda CDR 6000 was rear-ended by a car at a gas station. At the time, the motorcycle was completely stopped and waiting for passing traffic to exit onto the main road when it was struck from behind and caused to tip over. The motorcycle landed on the operator’s right leg and foot. The client was transported by ambulance to a local hospital. He sustained a displaced fracture of the fifth metatarsal in his right foot and the emergency room physician fitted him for a cast up to his right knee. An orthopedic surgeon thereafter fitted him with a pneumatic walker. The case was expeditiously and favorably settled, all medical bills paid, and the client quickly recovered.
Motorcycle Accident — Harley Davidson
The client’s Harley Davidson Screaming Eagle Fat Boy was rear-ended while stopped in traffic. Although the 45-year-old male client was jettisoned forward some eight to ten feet, the motorcycle sustained only $495.00 in property damage. The client was fitted with a cervical collar, placed on a spine board, and transported by ambulance to a local Cape Cod hospital emergency department. He sustained cervical and lumbar soft tissue musculoskeletal injuries, and also initially suffered from cervicogenic headaches, nausea and vomiting that caused him to miss one week of work. An MRI of the brain was normal. Orthopedic examination and a course of chiropractic treatment spanned only four months before he was discharged as fully recovered. Though the bodily injury insurer’s initial offer was surprisingly substantial and more than fair, Mr. Arnel nonetheless tirelessly counter-demanded against this generous offer and in short time increased his client’s recovery by another 10 percent.
Motorcycle Accident — Suzuki
The client was traveling easterly and slowly crossing the intersection of a major divided north-south highway when a car traveling westerly suddenly turned left in front of his Suzuki VZ 1600. The motorcycle struck the car almost head-on and the client flew over the handlebars to the asphalt pavement. The client was transported by ambulance to the emergency department at a local hospital. He received ten sutures at the hairline of his right forehead and seven sutures to his left shin, suffered from a small amount of road rash to his face and right shoulder, incurred several contusions and scrapes, and sustained a minor concussion and also soft tissue/connective tissue/musculoskeletal injury to his neck and back that necessitated seventeen weeks of chiropractic treatment.
The defendant denied liability and claimed that the motorcycle turned into her car. Her insurance company defended and conducted an accident investigation. Mr. Arnel immediately inspected the accident site, took measurements and photographed visible traffic signs and lights. He then interviewed the investigating police officer, obtained the police report, and additionally secured the actual on-the-scene accident photographs from the investigating police detective. Finally, Mr. Arnel interviewed an independent female eyewitness who had been identified in the police report.
At the time of the collision, the motorcycle had completely crossed the southbound lanes of the divided highway and had also almost completely crossed all four of its northbound lanes when accident occurred. The car’s final resting position depicted in several photographs clearly indicated that it, and not the motorcycle, had turned and that the motorcycle had never deviated from its original straight course. The accident reconstruction clearly showed that the car had incredulously initiated its intended left turn almost four lanes prematurely. In fact, had the car continued unimpeded on its apparent course, it would have perilously traveled southerly on the northbound side of the highway. Mr. Arnel was able to favorably reconstruct the entire incident to convince the insurer to accept liability and the claim settled to the client’s satisfaction.
Taxi Accident — Medicare Lien — Medicaid/MassHealth Lien
The client leased and operated a taxi cab. The taxi was turning left in a busy Boston intersection when another car was simultaneously traveling straight. The car collided into the passenger side of the taxi. The taxi driver was transported by ambulance to a Boston hospital where he was admitted for radiological examination and overnight observation. He fortunately sustained only cervical and lumbar strains. For the next three months the client received chiropractic treatment for subjective complaints of soft tissue injuries without any objective findings. Though both drivers denied liability, a subsequent independent investigation determined that both were equally liable when considering, amongst other things, the timing of the traffic lights and the usual and customary flow of traffic. There were no passengers or other identifiable independent witnesses. The two men claimed against each other for their respective bodily injuries.
Worker’s compensation did not apply since the client had indisputably finished his shift and was returning home at the time. The client, however, was a recipient of both Medicare and Medicaid (“MassHealth”), who each inexplicably deviated from standard procedure and mistakenly paid significant benefits to the hospital before its charges were first submitted for payment consideration under the personal injury protection (“PIP”) provision of the taxi company’s automobile insurance policy. Knowing that liability would be applied to the claim at 50% and realizing only 50 cents on the dollar, Mr. Arnel used this payment error to his client’s distinct advantage. Because Medicare and MassHealth always pay significantly less than the PIP insurer, Mr. Arnel was able to avoid having the $10,500 hospital bill completely exhaust the entire available $8,000 in PIP benefits. He instructed the PIP adjuster to refrain from immediately repaying the Medicare and MassHealth liens and to instead first apply the PIP proceeds to pay all the ongoing chiropractic bills.
This strategy enabled the client to treat for his injuries and ensured payment of chiropractic bills that are not otherwise covered by either Medicare or MassHealth. It also effectively maximized the client’s damages by additionally securing three months of partial disability to be further compensated under the claim. Each step was critical since the other driver’s insurance policy limits were minimal and the taxi’s underinsured motorist coverage was negligible. It would therefore take a balancing act to guarantee that the client would receive any monies after the legal fees, medical bills and liens were paid.
Once PIP paid all the chiropractic bills, Mr. Arnel successfully negotiated with both Medicare and MassHealth for a significant reduction of both their respective liens. He then properly submitted these reduced liens to PIP for direct reimbursement since PIP would have had to otherwise pay the hospital bills in the first instance and customarily at a greater rate than the lien amounts it was now repaying. The client, and not the bodily injury insurer, naturally received the windfall of Mr. Arnel’s hard negotiation tactics and realized the lucrative difference of the negotiations when the case was thereafter settled. Since legal fees in personal injury cases are derived from the gross profits before any other deductions are made, Mr. Arnel had worked hard to put more money in his client’s pocket and not his own. In the end, despite being awarded only 50% liability, the medical bills and liens were paid in full and the client incredibly netted more money than the average gross settlement of a typical soft tissue injury claim in Massachusetts.
Ambulance Accident — News Media — Worker’s Compensation Lien
In a highly publicized case that attracted much local media attention, the client and another emergency medical technician (“EMT”) responded to a “priority one” medical emergency and were transporting a heart attack patient to a Boston hospital. The ambulance, its emergency lights flashing and siren blaring, entered a major intersection eastbound when it T-boned a small Kia that was crossing northbound. The 32-year-old client was the ambulance operator and claimed that he had the green light at the intersection. He sustained traumatic injuries to his neck, back and chest but otherwise made a full recovery. Since he was injured during the scope of his employment, a worker’s compensation claim was opened and his medical bills were paid by his employer’s insurance carrier. The Kia was crushed by the significantly heavier ambulance and its female operator sustained significant and life-threatening injuries that required lengthy hospitalization. The woman initially told several newspaper reporters that she remembered nothing of the accident except waking up in the hospital. She later curiously recanted and claimed that she had the green light at the intersection and that the ambulance operator was at fault for the accident. Consequently, both operators made bodily injury claims against each other.
Mr. Arnel interviewed and then secured a sworn statement from an independent eyewitness, a local reverend, who occupied the first car in the southbound lane at the intersection. The reverend testified, amongst other things, that he believed that the ambulance operator probably had the green light, its lights were visible and its siren audible, that all other traffic stopped, and that any percipient motorist at the intersection would have or should have observed the approaching emergency vehicle if exercising due diligence. Mr. Arnel further investigated the timing patterns of the traffic controls in establishing the negligence of the woman.
Mr. Arnel settled his client’s claim for the entire available amount of the woman’s automobile policy. He negotiated down and paid off the worker’s compensation lien and his client was more than fairly compensated for his healed musculoskeletal injuries. Contrarily, the woman’s bodily injury claim against his client was denied by the ambulance company’s automobile insurance carrier.
Recreational — Carnival — Amusement Park Accident
The client brought her daughter to a traveling carnival in a nearby town that had temporarily licensed its operation. They initially decided to avoid the long waiting lines at the rollercoaster and some of the other carnival rides and instead went straight to the giant slide. Due to its curvaceous design, a rider’s view of the bottom of the slide was impeded when seated at the top. As a result, it was necessary that an attendant-employee instruct each rider when to embark to prevent a crash into either the preceding rider or another passerby at the bottom. The attendant neglected this duty and the client began her descent in the far left lane of the slide. Three-quarters of the way down, she suddenly realized that she would spill out into a young child who was directly in her path. Startled, she instinctively tried to slow her rapid descent by grabbing the sides of the slide. Her left hand was deeply cut on the outside lip of the slide and, although she avoided the impending collision, she required several sutures and sustained minor nerve damage. Mr. Arnel convincingly established that the predominant function of the attendant-employee was to prevent this type of reasonably foreseeable accident and that the proprietor knew or should have known of the resulting hazardous condition in the absence of proper supervision. Fortunately, the client’s hand eventually regained its full range of motion.
Slip And Fall — Landlord And Contractor
The client and her husband lived in a mobile home park north of Boston. The elevation of the street directly in front of their lot was raised several inches as a result of a poorly designed sewer pipe installation and road paving project. The engineer, land owner and contractor anticipated excessive water run-off into the client’s driveway and installed a dry-well. Notwithstanding, the dry-well was predictably ineffective and the drainage was grossly inadequate to nonexistent. This negligent design resulted in the foreseeable continual flooding of the driveway. For two years, the client continually complained to the landlord about the oppressive conditions. The desperate client also left the contractor voice mail messages on two occasions without reply. The water was knee deep at times and overnight freezing conditions would occasionally cause the family van to immobilize by literally encasing its tires in the ice. A year later, the landlord and his brother themselves made one lackluster make-shift effort to run a drain pipe from the dry-well across the street but inexplicably buried the end of the pipe in gravel above the driveway level so that the water would only back up toward the driveway and incredibly increase the water level. By way of his constant broken promises, the landlord otherwise never even attempted to remedy the defect despite the family’s repeated pleadings.
One day, the client and her two minor children traveled to a local pharmacy in the van. Upon returning to park front-end forward in the icy driveway where the mobile home was to the right, the client exited and took her customary route around the rear of the van. As she turned toward the front walkway, she slipped and fell on the ice. She attempted to break her fall by grabbing onto the van and only managed to injure her wrist. The woman crashed to the ice and immediately curled up into a fetal position in agonizing pain. She had broken her ankle in multiple places and could not get up. Both her son and daughter watched horrified as she cried in pain. An adult neighbor eventually arrived and called for an ambulance.
The broken ankle was surgically repaired and medical pins and screws were inserted. The client experienced complications over the ensuing year when her wound became infected several different times. A visiting nurse was required to treat the infected wound and minor surgery was eventually performed to clean and scrape the bone. A final surgery was required to remove the pins and screws.
Mr. Arnel filed suit against both the landlord and the contractor. The design engineer was excluded from the civil action as he had unfortunately passed away several years earlier. Both defendants, through their respective insurer’s attorneys, predictably argued that the defect was “open and obvious” and that the woman was somehow negligent in her own actions, or at least comparatively negligent in failing to exercise due care in a known hazardous situation. The contractor additionally argued that it simply complied with the original design specifications and therefore had no accountability. Mr. Arnel successfully argued to the contrary with regard to the several affirmative defenses asserted by the respective defendants and otherwise rebutted the contractor’s unacceptable attempted escape by establishing that the design defect and, more specifically, its failed application were both reasonably foreseeable and the contractor, by virtue of its self-professed expertise, knew or should have known of the resulting dangerous condition.
Now back pedaling in retreat, the landlord and contractor could not agree on their proportionate shares of liability and requested Mr. Arnel’s permission to settle out separately. A year earlier and sometime prior to filing suit, Mr. Arnel had inadvisably predicted his projected value of the claim to his client. Aware of the potential adverse consequences of severing the defendants and releasing one before the other, Mr. Arnel strategically decided to first unofficially settle with the contractor with whom he felt was least culpable of the two. Once a favorable settlement was negotiated, Mr. Arnel had the reasonable target amount to settle with the landlord and, upon hitting his target, settled the entire case as against both defendants. Mr. Arnel proudly proclaims that the handsome sum that was procured was the exact amount to the dollar as stated in his earlier crystal ball prediction and boldly offers to refer any doubter to his client for confirmation of the same.
Slip And Fall — Building Supplier — Self-Insured Entity
The client was viewing shrubs and plants in the nursery at the Home Depot located in Norwood when she tripped over a brick that had apparently been somehow dislodged from an adjacent display wall. The client was slowly walking around the circular wall with her primary focus naturally upon the plants contained within the wall itself and understandably not on the ground. She fell and struck her face on the asphalt pavement, sustaining a black right eye and requiring a total of 12 sutures above her right eyebrow. There were 5 internal sutures and 7 external sutures. The defendant denied liability and maintained that the client should have paid reasonable attention to where she walked, that it was foreseeable that a customer only moments before could have removed the brick from the wall, that the brick was not on the ground for a significant period of time to place the defendant on notice of a potential danger and therefore its displacement was reasonably unknown to the defendant, and that the presence of the brick should have been open and obvious to the client or any prudent person visiting the premises. Mr. Arnel provided demonstrative evidence that depicted, amongst other things, the natural tendencies and focus of consumers while viewing store displays in order to firmly establish the liability of the self-insured entity.
Slip And Fall — Premises Accident — Sports Arena
The client and her husband went to the Chelmsford Forum ice arena to watch their paternal grandson play in a youth hockey game. After the game, and in the dark evening hours of 9:30 p.m., the client went to her son’s car to kiss him and her grandson goodbye. She then proceeded to walk toward her husband who was waiting in their van. The client tripped over an 8 inch high metal stanchion that was protruding directly from the asphalt surface. The stanchion was the remainder of a handicap sign pole that had been removed. Family members immediately noticed that two adjacent handicap sign poles were severed in a similar manner. Small cones, that were not easily discernible in the dark, were however placed over the other two stanchions for safety reasons. The stanchion that the client had tripped over was not covered at all, was not otherwise marked in any way and was not visible in the dark. During an investigation on the following day, it was discovered that all the stanchions were immediately removed and the holes were filled with a grayish compound. An investigation of the entire handicap area that occurred four days later revealed the existence of bright blue handicap signs with white lettering that were now affixed to newly installed bright yellow poles. The insurer denied liability by claiming that another patron of the ice arena must have recently removed the third cone and that the landlord therefore had no advance notice of the defect. Mr. Arnel argued that, in a continually crowded public place predominantly occupied by adolescents, it was reasonably foreseeable to anticipate that this could occur and that the landlord either knew or should have known that the resulting hazardous condition would not be open and obvious in the dark. This abbreviated reasoning succeeded in establishing that the property owner was liable for his client’s injuries.
Premises Accident — Falling Merchandise — Self-Insured Pharmacy — 93A And 176D
The client was a 44-year-old local woman who worked as a subcontractor for an out-of-state news agency and had stocked magazines and newspapers for it at a popular local franchised pharmacy for the past three years. The accident occurred when an eight foot high store shelf and its merchandise collapsed and fell on the unsuspecting woman, pinning her under the debris and requiring the assistance of two store employees. One employee instantly apologized and stated that the shelf had not yet been fully bolted to the wall, despite that the news agency had previously paid the pharmacy to measure for and install the shelf. The client was neither working on the particular shelf nor was she comparatively negligent. She was in the exercise of due care and was not liable for her resulting injuries that were sustained as a direct and proximate result of the careless and negligent manner in which the premises were maintained.
The client was initially examined at a local hospital emergency department and subsequently treated with a neurologist and physical therapist for 27 weeks. An MRI revealed a small central L5-S1 lumbar disc protrusion and a possible small right lateral L4-5 disc protrusion touching the extraforaminal right L4 nerve root. She was also diagnosed with a chronic post-traumatic lumbar strain and a 7% permanent impairment rating. Her total disability was stated at 4 weeks, partial disability at 23 weeks, and she incurred a total of $7,045 in medical bills. She also sustained $3,178 in lost wages.
As an independent contractor, the woman was ineligible to receive Workers’ Compensation benefits under Massachusetts General Laws Chapter 152 to either collect lost wages or pay her medical bills. She also unfortunately did not have a private health insurance policy of her own. The contract between the news agency and the pharmacy “parent corporation” predictably contained an indemnification agreement that specifically exempted the news agency from any claim that resulted from the negligence of the pharmacy, its employees, agents or servants. His client had incurred and continued to incur medical bills, was physically disabled from working, and unable to afford the mounting expenses. Notwithstanding each of the foregoing, Mr. Arnel relentlessly fought to obtain the necessary medical treatment and simultaneously preserve his client’s credit rating. Mr. Arnel artfully portrayed his client/loyal worker’s unfortunate predicament to the news agency’s sympathetic president and ingenuously brokered with him a “courtesy” arrangement wherein the news agency agreed to pay his client’s reasonable medical bills provided it would be reimbursed from either the settlement proceeds or judgment award.
Mr. Arnel filed a negligence suit when the self-insured pharmacy “parent corporation” failed to reasonably respond to the initial settlement demand. He further leveraged his plaintiff-client’s position by additionally asserting a count for Unfair and Deceptive Insurance Acts and Practices pursuant to Massachusetts General Laws Chapter 176D, under the auspices of Chapter 93A, alleging that the defendant-pharmacy had willfully and knowingly engaged in bad faith acts and unfair and deceptive settlement practices in handling this particular bodily injury claim. Mr. Arnel instantly attacked by simultaneously serving document production requests and sworn interrogatories upon the defendant-pharmacy, who suspiciously answered in its defense that the individual franchised pharmacy store, and not the parent corporation, was the potentially liable party despite that the original contract was executed by the parent corporation and all prior written communications to Mr. Arnel were generated from corporate headquarters. Backed into a seemingly inescapable corner, the parent corporation agreed to favorably settle the suit prior to trial. The news agency was promptly reimbursed for its generous payment of the medical bills, the client received compensation for lost wages and pain and suffering, and the case was dismissed.
Premises Accident — Department Store
The client was an 84-year-old widow who was shopping at National Wholesale Liquidators when a folding chair fell from a high shelf and struck her forehead. At least two store employees witnessed her bleeding profusely and called an ambulance. At the hospital, a tetanus shot was given and the laceration was irrigated and “glued” shut, instead of sutured, due to her advanced age. The laceration produced a slightly visible one inch scar.
The defendant predictably asserted that the elderly woman had caused her own injuries, or at least was comparatively negligent, when she pulled out some of the folding chairs that caused the others to fall upon her. Mr. Arnel provided his theory of liability that successfully established that the chairs, purposely made accessible to the general public and invitees, and within arm’s reach, were apparently stacked in such an upright manner so that once the customer removed the weight of the front three chairs that were leaning backward to support the weight of the others, the fourth and other following chairs naturally spilled forward in a domino affect. Citing the commonly known and oftentimes dangerous stocking practices of many retailers and the unfortunate plight of far too many unsuspecting customers, Mr. Arnel effectively argued that the incident should have been foreseeable by a reasonable and prudent person when stocking the shelf and that his client’s injuries were the direct and proximate cause of this negligence. Mr. Arnel further correctly argued that both common law and Massachusetts case law principles of respondeat superior hold that an employer is vicariously liable for the negligent acts of its employees committed while under its supervision, care, custody and control. Finally, Mr. Arnel successfully exploited the delayed timing factor to clearly rebut the comparative/contributory negligence defense by illustrating that his client had safely removed and placed the first three folding chairs in her carriage before being struck by the fourth chair, and only after completely turning back around to retrieve it. The elderly client was made whole again for the injury she unnecessarily sustained.
The accident occurred in the East Suites Club Seating parking lot at Gillette Stadium in Foxborough. It was 35 minutes before the opening kickoff in a game between the host New England Patriots and the Baltimore Ravens on November 28, 2004. The client, a father of four and a Pennsylvania resident, had flown to his girlfriend’s residence in Massachusetts with his 13-year-old son so that the boy could attend his first professional football game. The boy was extremely excited to see the defending Super Bowl champion Patriots. The client was a front-seat passenger in his girlfriend’s 2000 Chevrolet Tracker sports utility vehicle that was slowly proceeding on the main parking lot road toward its eventual parking space. Another football fan was speeding through the parking lot in his 2004 Honda Odyssey caravan and failed to stop for either the silver barricade gates or the CSC Security before entering the main roadway. The two vehicles violently collided almost head-on and the client’s vehicle sustained heavy damage to its passenger side front quarter panel.
The client sustained a transverse process fracture of the L-2-L3 lumbar region, a lumbar strain and some headaches. The other operator’s insurance company initially denied liability and held that it was unclear as to who was at-fault. Mr. Arnel obtained stadium security witness testimony and further established by point of impact that the other vehicle had, without regard to safety or exercising proper caution, perilously crossed numerous lined parking spaces before merging into the main road and causing the collision.
Minor Child Accident — Roadway Defect — Negligent Repair — SUV — Black Box
The 9-year-old boy was seriously injured when his mother’s sports utility vehicle, a 2003 Chevrolet Tahoe, hit a pothole that was exposed due to a temporary “wet” patch washing away in the rain. She lost control of the SUV and a lateral impact occurred when the rear driver’s side of the SUV crashed into a tree. The boy fractured his skull and jaw and sustained several minor facial lacerations resulting in minor scarring. Mr. Arnel alleged a roadway defect and immediately settled the claim to the maximum statutory limits, pursuant to General Laws Chapter 84, §15, against the town by convincing officials that, because the police knew who performed the roadway repairs several days earlier, and the police were clearly town employees, knowledge of the defect was imputed upon the town. With the mother’s consent, Mr. Arnel simultaneously settled a claim for the entire limits of her own automobile insurance policy by asserting her comparative negligence.
Finally, Mr. Arnel filed suit against the water district that performed the work, which zealously defended by claiming mother’s comparative negligence. It produced data that was downloaded from the SUV’s “black box” indicating, amongst other things, that she was speeding at the time. However, empirical scientific findings published by, amongst others, the United States National Highway Traffic Safety Administration have established that black boxes, known in the automobile industry as Event Data Recorders (“EDRs”) or Crash Data Recorders (“CDRs”), oftentimes malfunction and can be subject to erroneous interpretation and potent manipulation. Mr. Arnel successfully attacked the defense theory by citing numerous examples of flawed data. For example, the GM black box that was installed in the 2003 Chevrolet Tahoe records only longitudinal delta-V. For all frontal crashes, the average error was slightly less than 6%. For lateral crash pulses, the observed error approached 19%. When the vehicle yaws, the resulting spinning motions will produce different lateral acceleration measurements. The majority of the black boxes did not record the entire event. In one-third of the GM tests, or specifically 10 out of 30, 10% or more of the crash pulse duration was not recorded. A data loss of this magnitude would prevent a crash investigator from using a black box to even estimate the true delta-V of a vehicle. Defense counsel recognized the validity of these scientific principals and the strength of Mr. Arnel’s legal theories and encouraged its client to settle the case at a significant sum that was eventually approved by the court.
Preexisting Conditions — Polymyalgia — TMJ
In a textbook case of upholding the age old principle that “you take the plaintiff as you find him,” Mr. Arnel settled a personal injury case for his client where the insurer predictably argued that the accident was nothing more than a typical minor impact soft tissue (“MIST”) injury case that resulted in negligible damage to either vehicle involved. The client’s car was tapped hard in it’s rear-end and she claimed that her preexisting conditions were exacerbated. She specifically suffered from polymyalgia and temporal mandibular joint disorder (“TMJ”). The case was eventually satisfactorily settled after suit was filed in the superior court and discovery was completed.