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Stephen H. Lebovitz v. Hartford Insurance Company of the Midwest

July 31, 2012

STEPHEN H. LEBOVITZ, PLAINTIFF,
v.
HARTFORD INSURANCE COMPANY OF THE MIDWEST, DEFENDANT.



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

REPORT AND RECOMMENDATION

I. Recommendation:

It is respectfully recommended that the defendant's motion for partial summary judgment on the plaintiff's claims of disability resulting from cognitive impairment, concussion symptoms or an inability to work as a lawyer beyond November 20, 2007 (Document No. 47) be denied.

II. Report:

In this insurance coverage dispute, the defendant, Hartford Insurance Company of the Midwest ("Hartford"), moves for partial summary on the plaintiff's claims of disability related to cognitive impairment, concussion symptoms or an inability to work as an attorney beyond November 20, 2007. For reasons discussed below, Hartford's motion for partial summary judgment should be denied.

The plaintiff, Stephen H. Lebovitz, commenced this action in the Court of Common Pleas of Allegheny County, PA, seeking to recover up to $2 million in uninsured motorist ("UM") benefits under an insurance policy issued by Hartford. On August 5, 2011, Hartford filed a timely notice of removal to this Court, and it is undisputed that the Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.*fn1

The insurance policy in question was issued by Hartford to the plaintiff's parents for the period 01-06-07 to 01-06-08 and covered (4) vehicles with stacked UM coverage of $500,000 per vehicle for a total of $2 million (Complaint at ¶ 2 and Answer thereto). The UM portion of the policy requires Hartford to "pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: 1. Sustained by an insured; and 2. Caused by an accident. The owner's or operator's liability for these damages must arise out of the ownership, maintenance or use of the uninsured motor vehicle." (See, Policy at p. 20 of 46, Form 8537, which is attached to the Complaint). Hartford does not dispute that the plaintiff is an "insured" for purposes of his UM claim; however, it disputes whether he suffered injury in an accident for which he is legally entitled to recover from the operator of the alleged vehicle involved in the accident.*fn2

The plaintiff asserts that on September 4, 2007, he was injured while riding his bicycle in Pittsburgh, PA when an unidentified female motorist in a green sedan automobile recklessly turned her vehicle into his path, such that the vehicle's right side window struck the ride side of his bicycle helmet, causing him to be knocked to the ground (Complaint at ¶¶ 5, 10). The female motorist left the scene of the accident without providing her identification or any information (Id. at ¶¶ 6, 11). The plaintiff asserts that as a result of the accident, he sustained multiple injuries, including a C3 fracture, concussion, hematoma, bruises, contusions, and a traumatic brain injury causing him total disability (Id. at ¶ 5).

It is the plaintiff's contention that as a result of the accident, he suffers from concussion symptoms, including cognitive impairments, fatigue, headaches, nausea, anxiety, inability to sleep and other maladies, all of which are exacerbated by attempts at cognitive or physical exertion (Defendant's Concise Statement of Material Facts ["DSMF"] at ¶ 3 and plaintiff's response thereto). Consequently, the plaintiff avers that he is totally and permanently disabled from any and all employment, including his pre-accident profession as an attorney (Id. at ¶ 4).

At the plaintiff's deposition held on March 12, 2012, he testified that since the occurrence of the accident on September 4, 2007, he continues to experience the following symptoms in a typical day: dizziness in his head that can lead to nausea; trouble maintaining his concentration or keeping track of multiple things; trouble reading and keeping his eyes fixed on words beyond a few lines of text; bad headaches; and fatigue when he exerts himself physically or cognitively (Plaintiff's deposition at pp. 23-27 [Doc. 49-2]). In a May 13, 2008 Intake Evaluation from ReMed Rehabilitation Clinic of Pittsburgh, it was reported that the plaintiff's "typical day consists of getting out of bed, preparing a simple breakfast, attending therapy, walking, meeting a friend for lunch, sitting outside, listening to music and running errands" (Doc. 49-5).

Hartford asserts that following the accident, the plaintiff treated with several doctors and regularly reported to them the subjective concussion symptoms described above. It also avers that presently, the plaintiff continues to self-report that all physical and cognitive exertion renders him symptomatic and fatigued. However, Hartford disputes whether the plaintiff suffers from any continuing symptoms related to the accident beyond an approximate two month period, after which all objective testing showed that he had recovered from his accident-related injuries.

For instance, Hartford points to the deposition testimony of Dr. Michael Collins, the plaintiff's treating neuropsychologist. The plaintiff treated with Dr. Collins the day following his accident, and Dr. Collins diagnosed him as having sustained a mild traumatic brain injury (DSMF at ¶ 5 and plaintiff's response thereto). In a deposition dated February 17, 2012, Dr. Collins testified that he evaluates traumatic brain injuries by using the "ImPACT test", which is a 25 minute cognitive test administered on a computer that measures the functionality of the brain through cognitive processes (Dr. Collins deposition at pp. 18-20 [Doc. 49-4]). Dr Collins first examined the plaintiff on September 5, 2007, and after administering the ImPACT test, he diagnosed the plaintiff with having sustained a cerebral concussion (Id. at pp. 7-8, 20-21). On September 14, 2007, Dr. Collins again used the ImPACT test on the plaintiff, the results of which showed he had improved significantly (Id. at p. 26). However, at a follow-up exam with the plaintiff on September 27, 2007, Dr. Collins administered the ImPACT test, but it showed a regression, as the plaintiff's scores dropped considerably (Id. at pp. 31-32).

The plaintiff was given the ImPACT test again on October 23, 2007, and test results revealed "profound improvements" (Id. at p. 38); Dr. Collins attributed the inconsistency in the plaintiff's ImPACT test results to possible bouts of anxiety, visual system issues, and personality attributes (Id. at pp. 38-43). On November 20, 2007, the plaintiff was given another ImPACT test which showed "[t]hree out of four scores were normal"; and while "[h]is reaction times were at the low limits of the average range,. they were impressive" (Id. at p. 46). That day, Dr. Collins performed extra neuropsych testing on the plaintiff, and "those tests were normal as well" (Id. at pp. 46-47). Thereafter, with the exception of "one data point where he dropped pretty significantly again", the plaintiff's ImPACT test results were normal (Id. at p. 59). The last time Dr. Collins gave the plaintiff an ImPACT test, in October of 2011, "[h]e was entirely normal", and "the best I had ever seen him on that test" (Id.).

In questioning the plaintiff's subjective injury claims, Hartford also presents evidence which shows that the plaintiff has engaged in myriad activities which dramatically contrast from the limitations he self-reports to his treating doctors. As examples, Hartford has shown that the plaintiff attended polo matches a week after the accident (Defendant's Exhibit G [Doc. 49-5]); attended boxing matches at the Pittsburgh Athletic Association less than two months from the accident and several times thereafter (Plaintiff's deposition at pp. 157-58, 451-52 [Docs. 49-2 and 49-3]); regularly attended Steeler football games every year since the accident (Id. at p. 452); regularly engaged in exercise, including running, swimming, playing tennis, walking and participating in yoga sessions (Id. at pp. 148-49, 155-56, 248-54, 445, and 453); posted hundreds of comments on technical websites, such as the Samsung developers forum, where he engaged in discussions concerning the Android phone operating system (Id. at pp. 70-81); performed computerized legal research at the request of his father/lawyer, and entered appearances in multiple pending legal matters, where he signed documents and pleadings to be filed with the courts (Id. at pp. 380-86, 399-410, 415-18, 425-28, 434-38, 453-54); and regularly traveled by airplane, including taking day ...


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