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Lamb v. Berry12/28/2001
After settling for a total of $20,000 from two insurers, plaintiff Sandra G. Lamb went to trial against a third insurer and its insured, claiming that her injuries exceeded the amount previously paid. The trial court disagreed and found for the defendants. The plaintiff appeals. For the following reasons, we affirm.
FACTS
On September 22, 1997, the plaintiff's car was struck by a vehicle driven by defendant Robert Jason Berry and owned by Shannon Clark. The collision was caused by Mr. Berry's failure to yield at a stop sign. Mr. Berry and his insurer, Patterson Insurance Company, stipulated to his liability.
Prior to trial, the plaintiff settled with Progressive Security Insurance Company, the primary insurer on the Clark vehicle, for the policy limits of $10,000. As a condition of the settlement, the plaintiff agreed that any award against Mr. Berry and his insurer would be limited to his coverage of $10,000 under his insurance policy. The plaintiff also settled with her UM carrier for her policy limits of $10,000, and it waived subrogation.
At trial, the plaintiff contended that the accident caused her to sustain permanent injuries to her neck, lower back and right leg. She introduced the depositions of her treating physicians and physical therapists, as well as the testimony of her son, her sister, a previous employer, and a friend. Each testified that the plaintiff complained of pain following the accident. She quit her job cleaning a mechanic's shop. She participated less in activities she had enjoyed prior to the accident.
Each of the plaintiff's doctors stated that there was a lack of objective findings to support the plaintiff's subjective complaints of pain. The plaintiff was initially treated for cervical pain by Dr. Kenneth McDonald, her longtime family doctor; however, she later sought medical treatment from other doctors for lumbar pain and radiating leg pain. Dr. Peter Spohn, an orthopedic surgeon, stated that when performing the straight leg test while lying down, the plaintiff appeared to experience pain. When performing the same test while sitting up, the plaintiff appeared to be pain-free. Dr. Spohn stated that this result was "inconsistent" and suggested "poor cooperation." When asked if this result could represent pain during the testing, Dr. Spohn said, "Actually, no. It actually indicates either someone who has learned how to do the tests partially, or literally they're just not cooperating." Dr. Spohn was unable to explain the particular pains that the plaintiff felt and repeatedly asserted that the complaints and the medical findings were "inconsistent." Dr. Spohn hypothesized that the plaintiff's back pains could have been caused by the accident, but repeatedly affirmed that the leg weakness and pain could not have been caused by the accident. Dr. Spohn stated at one point that he believed that the plaintiff's complaints would resolve themselves after the case was settled.
Dr. McDonald treated the plaintiff for several years prior to the accident. Following the accident, on September 25, 1997, he treated the plaintiff for complaints of some "neck and arm pain." At that time, she had muscle spasms and strain in her neck. X-rays revealed that she had some straightening of the normal lordotic curve, some mild degenerative changes and some mild scoliosis. He diagnosed her with acute muscle strain of the neck and treated her with Soma, a muscle relaxer, and Motrin, a non-narcotic pain reliever. Dr. McDonald noted that she had some degenerative disc disease on the C-spine, a phenomenon that he noted was normal for a woman her age. All of the doctors, including Dr. Sidney Lee Bailey and Dr. Douglas Brown, agreed that her
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