meservey v. nationwide

STATE OF VERMONT ‘|. WASHINGTON COUNTY

ANNETTE MESERVEY and voy oy, Hy i

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ROBERT MESERVEY }
nenian fx. ~DOCKET NO. 441-8-01 Wnev
SUPESTOS
Vs. vw x a 2 oe }
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NATIONWIDE MUTUAL INSURANCE }
COMPANY }

Findings and Conclusions

This matter came before the undersigned on October 31, 2002 for a trial before the court.
Neither Assistant Judge was available. Plaintiffs are represented by Richard I. Rubin, Esq.
Defendant is represented by Barbara R. Blackman, Esq. The case arises out of a motor vehicle
accident. The amount of compensatory damages was the only issue tried.

FINDINGS OF FACT

Annette and Robert Meservey are named insureds under an automobile liability policy
issued to them by Nationwide Mutual Insurance Company. On December 15, 1999, Annette
Meservey was driving her 1994 Honda Accord, an insured vehicle under the Nationwide policy,
on Route 15 in Wolcott when she was struck from behind by Miranda Maxham, an uninsured
motorist: The negligence of Miranda Maxham caused the accident. As required by the policy,
Nationwide will pay compensatory damages, including derivative claims which are due
to the insured or a relative of the insured.

Annette Meservey is 37 years old and her husband Robert is 36. They have two children,
ages 18 and 17. Ms. Meservey played sports in high school, and has been physically active all her
life. Her daughter is also an excellent athlete. Over the years Ms. Meservey has played basketball
and soccer regularly with her daughter as her daughter's own athletic training has progressed.

Ms. Meservey has also engaged in other regular exercise. She kept both a vegetable and flower
garden, and was an active housekeeper. She scrubbed the floor on her hands and knees at least
once a month. The entire family went snowmobiling together regularly in the winter, including
spending at least one full day on the weekend on long distance snowmobile outings, often with
friends and family. In the summer they spent considerable time at a family camp on a lake. Ms.
Meservey participated actively in swimming, waterskiing, boating, tubing, and other outdoor
activities.

After running a home day-care when her children were small, Ms. Meservey began to
work at Quality Control Stitching as a stitcher, which she had done for several years before
December of 1999. She liked the work because it allowed her to create a variety of different
things out of cloth. She also enjoyed going to work with her mother, and she enjoyed her
co-workers.

In February of 1999, ten months before the accident at issue in this case, Annette Meservey
was in a snowmobile accident in which she suffered a compression fracture of T11-T12. She
was hospitalized and pursued follow-up treatment, including physical therapy. She discontinued
physical therapy in April of 1999 when she returned to work. After approximately eight months,
the fracture had completely healed. Her activity level had returned to normal with a slight
exception: occasionally when she did sit-ups, push-ups, or went jogging, she could feel a slight
twinge. She could also feel it when the weather was cold and damp. The effect was minor and
had no impact on her level of physical activity. By October of 1999, she had resumed her normal
level of physical activity.

The accident occurred on December 15, 1999. Ms. Meservey was hit from behind without
warning while in her car. The car was totaled as she was hit at a fairly high rate of speed. She
sought treatment immediately after the accident, and started physical therapy within a week. She
had pain in her right shoulder that interfered with her ability to lift her right arm. She was unable
to lift it or hold it out or above her head without pain. After two months, when physical therapy
had not resulted in recovery, she consulted Dr. S. Glen Neale for further treatment. He
recommended trigger point injections, which she received, but without beneficial effect. When
they did not help he then recommended acupuncture and deep massage therapy. Those also did
not relieve her painful condition or her ability to use her arm.

She was laid off at Quality Stitching shortly after the accident. She applied for and
obtained unemployment benefits. She was out of work after the accident for several weeks,
pursuing treatment while she was unemployed. In March of 2000 she was called back to work.
She went back and tried to work, but she was not able to hold her arms up, and therefore could
not operate the stitcher. She stayed out of work until April 21, 2000 when she began work as a
kindergarten teacher's aide. She is able to do that work because it does not require her to lift her
right arm. She enjoys it and has continued that work since.

On January 3, 2001, she returned to Dr. Neale for an updated evaluation of her condition.
At that time he concluded that she has a permanent injury. She suffers chronic pain in the medial
rhomboid muscle and painful trigger points in her shoulder. These affect her ability to move her
shoulder and raise her arm away from her body or hold it out or over her head without pain.
Carrying weight causes her pain, as does repetitive action. She holds her right arm in a guarded
position to prevent arm movements that would cause her pain. Since this condition did not
improve over time, despite a variety of attempted treatments, it will remain for the rest of her life.

This has had a significant impact on her daily activity. She can no longer engage in
regular athletic activity as she did before. She cannot play soccer or basketball, or go waterskiing
or snowmobiling. She cannot do housekeeping tasks as she did before, including vacuuming or
absorbed by other family members. The family is no longer able to go snowmobiling as a family,
and they have sold their snowmobiles.

Her injury represents a five percent permanent impairment based on the pain and limitations
of her shoulder and arm. Nothing about her prior snowmobile accident contributes to this
particular impairment.

Two years after the accident, in December of 2001, the Meserveys' oldest child turned 18.
He left home under circumstances somewhat distressing to Ms. Meservey. She felt down and
consulted a mental health professional, who prescribed medication. Since that time the effects of
her son's leaving home have lifted somewhat. Her depression is resolving. Her physical condition
resulting from the car accident remains unchanged. She is occasionally awakened at night by
pain, and periodically needs to stop what she is doing and rest. She will always have to guard
against lifting her arm in order to avoid painful consequences.

Robert Meservey has experienced direct effects from her injury, which has impacted their
relationship. Physical activity has been an important part of their family life during their 20 years
of companionship and marriage. In addition to family snowmobiling and waterskiing and other
summer camp activities, a yearly family activity and shared experience was splitting, hauling, and
stacking firewood. Ms. Meservey can no longer help with this activity directly. Her injury has
caused Mr. Meservey to give up snowmobiling and to curtail various other activities. Their
conjugal relations were interrupted temporarily.

Annette Meservey's earnings as a kindergarten aide are higher per hour than her
earnings at Quality Stitching, but she works fewer hours so that her total earnings are less. She
claims lost earnings for the period from the accident until she started working on April 21,
2000 as a teacher's aide. She also claims lost earnings of $5,000 per year representing the
difference between her earnings at Quality Stitching and her earnings as a teacher's aide.

The court finds that her choices of work, both at Quality Stitching and as a school aide, are
based on her desire to engage in work that she enjoys rather than a goal of working at her
maximum earning capacity. Plaintiff has not proved that her earning capacity has been reduced as
a result of the accident. While she has physical limitations and a permanent injury, that does not
necessarily mean that she does not have the skills and ability to engage in work at a level of
compensation equal to what she earned at Quality Stitching. There is insufficient proof on the
loss of earnings claim.

As to her claim for lost earnings between December 1999 and April 2000, plaintiff has not
proved by a preponderance of the evidence that the reason she was out of work was that she
could not physically engage in work. Although she could not operate a stitching machine, it is not
clear that she could not do other work, such as she later did when she took on the job of a
teacher’s aide at kindergarten.
The court finds that Annette Meservey has sustained and will sustain the following
damages as a result of the automobile accident: medicals expenses of $3,547, plus interest from
January 2001 equaling $4,327; pain and suffering; and loss of enjoyment of life due to permanent
injury. The court finds that Robert Meservey has suffered and will suffer damages for loss of
companionship.

CONCLUSION
The court awards plaintiff Annette Meservey judgment in the amount of $89,327.00, and

awards Robert Meservey judgment on his claim for loss of companionship in the amount of
$15,000.00.

Dated at Montpelier this 25" day of November, 2002.
WASHINGTON SUPERIOR COURT

By: WV Qua Yikes leaclen St
Hon. Mary Gijles Teachout
Superior Judge, presiding