$400,000 result — cited in VerdictSearch.com

Bicycle — Underinsured Motorist — U-turning bicyclist injured knee, shoulder when hit by vehicle

SETTLEMENT: $400,000

CASE: Anthony Dell’Orto v. Leslie Hunt, Jr and Tania M. Perez, No. 2173/07. Anthony Dell’Orto v. Fireman’s Fund Insurance Co.

COURT: Westchester Supreme. DATE: 8/14/2008

PLAINTIFF ATTORNEY(S): Alan M. Greenberg, Law Offices of Alan M. Greenberg P.C., New York, NY

DEFENSE ATTORNEY(S): Paul Carney, Lester, Schwab, Katz & Dwyer LLP, New York, NY (Fireman’s Fund Insurance Co.). Linda M. Chetkof, DeSena & Sweeney LLP, Hauppauge, NY (Leslie Hunt Jr., Tania M. Perez)

FACTS & ALLEGATIONS: On Sept. 26, 2006, plaintiff Anthony Dell’Orto, 46, the owner of a wholesale catering business, was bicycling on New Main Street, in Yonkers. New Main Street is a one-way, northbound street, but Dell’Oro was traveling in a southerly direction. As he approached the intersection at South Broadway, he attempted to execute a U-turn. During the turn, he was struck by a northbound vehicle that had rounded a sharp curve of New Main Street. Dell’Orto was propelled off of his bicycle. He landed on the vehicle’s hood, but fell onto the road. He sustained injuries of a knee and a shoulder.

Dell’Orto sued the vehicle’s driver, Tania Perez, and the owner of Perez’s vehicle, Leslie Hunt Jr. Dell’Orto alleged that Perez was negligent in the operation of her vehicle. He further alleged that Hunt was vicariously liable for Perez’s actions.

Dell’Orto claimed that Perez was speeding. He also claimed that Perez failed to maintain a proper lookout.
Perez noted that Dell’Orto was bicycling against the flow of traffic, and she contended that his U-turn crossed the direct path of her vehicle. She also noted that the collision occurred at the conclusion of a sharp bend of New Main Street.

The defendants’ insurer, State Farm Fire and Casualty Co, tendered its $100,000 policy, but Dell’Orto sought further recovery from the supplementary-underinsured motorist provision of his own policy, which was administered by Fireman’s Fund Insurance Co. The matter was scheduled to proceed to arbitration.

INJURIES/DAMAGES: acromioplasty, arthroscopy, comminuted fracture, fracture, proximal fibula; fracture, tibia; fracture, tibial plateau; internal fixation, knee, open reduction; resection, torn rotator cuff, torn supraspinatus tendon

Dell’Orto sustained a comminuted fracture of the proximal portion of his right leg’s fibula, which forms a lower portion of the knee; a fracture of the proximal portion of the same leg’s tibia, which also forms a lower portion of the knee; fractures of the same leg’s lateral and medial tibial plateaus; and full thickness tears of the infraspinatus and supraspinatus tendons of his right shoulder’s rotator cuff.

He was placed in an ambulance and transported to St Joseph’s Medical Center, in Yonkers. His fractures were addressed via arthroscopic surgery, open reduction and internal fixation. His right knee was placed in a brace, and the knee could not bear weight during the two months that followed the accident. His hospitalization lasted three days, but he claimed that he was bedbound during the week that followed the accident. He also claimed that he was homebound and totally disabled during the six months that followed the accident.

On Feb 8, 2007, Dell’Orto underwent arthroscopic surgery that addressed the injuries of his right shoulder. He also underwent open reduction of the shoulder’s torn tendons, resection of the distal portion of the shoulder’s clavicle, release of the shoulder’s coracoacromial ligament and an acromioplasty, which is the removal of a portion of a shoulder’s acromioclavicular joint.

Dell’Orto contended that his right leg cannot bear much weight. He also contended that the leg and his right shoulder are stiff and painful. He claimed that the injuries constitute a partial disability.

Dell’Orto sought recovery of damages for his past and future pain and suffering.

RESULT: Prior to the scheduled start of the arbitration, the parties negotiated a settlement. Dell’Orto’s insurer could have been liable for as much as $400,000, which represented the $500,000 coverage limit less the $100,000 that Dell’Orto recovered via the prior settlement. The insurer agreed to pay $300,000.

INSURER(S): State Farm Fire & Casualty Co. for Hunt and Perez

PLAINTIFF EXPERT(S): Charles Edelson, M.D., orthopedics, Yonkers, NY

DEFENSE EXPERT(S): None reported

EDITOR’S NOTE: This report is based on information that was provided by plaintiff’s counsel. The remaining parties’ counsel did not respond to the reporter’s phone calls.

— Samantha Schulz