Appeal from Superior Court of King County. Docket No: 91-2-24892-3. Date filed: 05/18/95. Judge signing: Hon. Robert J. Wesley.
The Publication Status of this Document has been Changed by the Court from Unpublished to Published February 21, 1997.
Authored by Faye C. Kennedy. Concurring: Susan R. Agid, C. Kenneth Grosse.
The opinion of the court was delivered by: Kennedy
Kennedy, A.C.J. -- Betty Kohfeld appeals the trial court's entry of judgment in favor of United Pacific Insurance Company and the subsequent denial of her motion for a new trial. Ms. Kohfeld contends that the trial court erred: (1) in permitting United Pacific to recover in subrogation the personal injury protection payment previously made to her; (2) in denying her motion for a new trial; and (3) in awarding United Pacific costs. Finding no error, we affirm.
On May 1, 1989, Betty Kohfeld was injured in automobile accident. She was taken by ambulance to Virginia Mason Hospital where she was treated for a cervical strain and a contusion to her forehead. After approximately an hour of observation, Ms. Kohfeld was released and returned home to rest.
Two days later, on May 3, 1989, Ms. Kohfeld went outside onto her deck to sit in the sun when she began to feel lightheaded. Although she reached for the railing to steady herself, she was unable to hold onto it and fell to the floor. She was again admitted to Virginia Mason Hospital where she was treated for a fracture of her left shoulder.
Sometime after she was treated for her shoulder fracture, Ms. Kohfeld brought an action against Roy Sandford, the driver who was determined to have caused the May 1, 1989, automobile accident. She eventually settled with Sandford for $180,000, well within his liability policy limits of $250,000. Ms. Kohfeld thereafter filed a complaint against her automobile insurer, United Pacific Insurance Company, to compel arbitration of her Underinsured Motorists (UIM) claim. Following a hearing conducted in January of 1994, the arbitrators issued a decision valuing Ms. Kohfeld's claim at $464,000.
On March 14, 1994, United Pacific moved to offset from Ms. Kohfeld's UIM arbitration award the full amount of Sandford's policy limits as well as payments made under Ms. Kohfeld's Personal Injury Protection (PIP) Endorsement. Judge Sharon Armstrong denied United Pacific's motion, holding that it would be permitted to offset only the $180,000 actually paid by Sandford's insurer, together with the PIP payments made to Ms. Kohfeld.
Dissatisfied with the arbitrators' decision, Ms. Kohfeld filed a demand for a trial de novo on March 31, 1994. Her claims were tried to a jury commencing on January 18, 1995.
The primary issue at trial was whether Ms. Kohfeld's May 3, 1989, fall was a proximate result of the automobile accident on May 1, 1989. The parties presented conflicting expert testimony on the cause of the fall.
In support of her claim that the fall was the result of injuries sustained during the accident, Ms. Kohfeld presented the testimony of Dr. Laird Patterson and Dr. Alan Langman. Dr. Patterson expressed the opinion that Ms. Kohfeld's head trauma suffered during the accident and the resultant post-concussion syndrome were directly related to her fall on the deck.
Similarly, Dr. Langman testified that, more probably than not, the automobile accident resulted in Ms. Kohfeld's dizziness leading, in turn, to her fall.
United Pacific selected Dr. Owen Black, a physician specializing in otology and neurotology, to conduct an independent examination of Ms. Kohfeld. Dr. Black examined her twice. The first examination occurred in December of 1992, approximately two and a half years after the accident; the second occurred two years later, in December of 1994. Dr. Black testified that in 1992, after his initial examination of Ms. Kohfeld, he reached the following Conclusion:
I thought she had an inner ear concussion that could be related to the motor vehicle accident that she described in May. I think it was 1989. Yes.
If she had an inner ear concussion syndrome, it was possibly related to that event. But it could also have been related to the fall that she had.
Report of Proceedings at 709-10. When asked if he could "put a label" on his 1992 diagnosis, Dr. Black stated that he thought at that time that Ms. Kohfeld suffered from a benign proximal position establishing vertigo (BPPN), resulting from trauma.
Dr. Black testified, however, that his diagnosis changed following his examination of Ms. Kohfeld in 1994. Although he administered the same tests in 1994 that he had administered in 1992, Ms. Kohfeld's performance deteriorated substantially. Moreover, Dr. Black learned that Ms. Kohfeld had not responded to physical therapy. Based primarily on Ms. Kohfeld's test results and her lack of improvement following physical therapy, Dr. Black concluded that she suffered from degenerative BPPN unrelated to the automobile accident, rather than traumatic BPPN stemming from the accident.
During cross examination, counsel for Ms. Kohfeld noted that another expert, Dr. John Epley, had examined Ms. Kohfeld twice but failed to discover any indication of BPPN. Dr. Black explained the discrepancy between his testimony and that of Dr. Epley by testifying that BPPN is not easy to ...