The Truth About the Geico HPV Case

The Truth About the Geico HPV Case

This past weekend, a friend of mine told me a fantastical story about Geico Insurance Company being ordered to pay more than $5 million to a lady who had contracted the HPV virus in a car insured by Geico.  I told him that the story must be apocryphal.  Interested in whether the story had any merit, I conducted a quick Google search and found at least 100 articles from different “news” organizations claiming that Geico had been ordered to pay the lady $5.2 million by a court in Missouri.  I then also heard the same claim being made by Trevor Noah on his talk show.  Being extremely skeptical about these claims based on my experience in personal injury actions, I decided to conduct some research.  The following is what I discovered.  .

The Allegations

In 2017, two adults, identified as M.O. and M.B. in the legal actions, engaged in consensual sexual intercourse in M.B.’s vehicle, which was insured by Geico.  M.G. also possessed an umbrella liability policy with Geico.  Unknown to M.O., M.B. had been previously diagnosed with Human Papillomavirus (HPV), a fact he did not disclose to M.O., who was later diagnosed with HPV.  M.O. sought compensation from M.B. for causing her to contract this contagious, and sometimes deadly, disease.

Since M.B.’s policies with Geico provided coverage to M.B. for injuries that arose out of the “use” of M.B’s vehicle, M.O. attempted to settle her claim against M.B. within the monetary limits of the policy of $1 million.  Geico refused to engage in settlement discussions with M.O.  As such, she informed Geico that she intended to file a legal action against M.B. for her injuries.  Geico then refused to either indemnify M.B. or to even provide a defense for him.

The Law

While I am unfamiliar with the specific law in Missouri, most states require people who have been diagnosed with an STD to disclose that fact to any sexual partner. In fact, in Ohio, failing to disclose an STD diagnosis to a sexual partner is a crime, either as a misdemeanor or a felony offense if the STD is HIV.  Further, a person who fails to disclose his/her STD diagnosis can also be held liable for monetary damages in a civil action, which is what we have in this case.

The Legal Actions

Apparently in Missouri, parties to a civil case can submit the entire matter to arbitration and agree to be bound by that decision, which the parties did in this case.  Just as in a trial before a jury or judge, the parties are given an equal opportunity to submit evidence in the form of testimony from witnesses and physical exhibits, and to make arguments in support of their case.   Although Geico was made aware of this process, it chose not to get involved and not to hire an attorney to represent M.B.  In my experience, insurance companies almost always hire an attorney to represent their insured if there is even the slightest possibility that it may need to extend coverage to its insured.  Geico simply decided to take that risk in this case.  

The case eventually proceeded to an arbitration hearing, during which both parties were afforded the opportunity to submit evidence.  At the conclusion of the hearing, the arbitrator awarded M.O. $5.2 million for her damages.  A Missouri court later adopted that award and issued a judgment against M.B, not against Geico.  While Geico attempted to intervene in the action following the arbitration decision, the Missouri court found that Geico was given the opportunity to participate and defend M.B. at the arbitration and simply chose not do so, and as such, dismissed it from the case.  A Missouri Appellate Court affirmed that decision.

The Truth

At around the same time as the arbitration hearing, Geico filed an action in federal court seeking a declaration that it was not obligated to extend coverage to M.B.  As of the date of this article, that action is still pending; however, many news organizations have falsely reported that Geico has been ordered to pay M.O. $5.2 million.  That is simply not true.   The issue of coverage is yet to be decided, but that has not stopped Geico’s public relations department from misinforming and misleading the public into believing that it has been ordered to pay the award.  Based on my reading of the pleadings filed in the case, I believe that M.O. will likely have a difficult time convincing the court that coverage should be extended to M.B., in which case, she would receive none of the $5.2 million award.  Further, barring some extraordinary circumstances, Geico’s overall exposure is likely limited to the $1 million policy limit.  So, even if the federal court determines that Geico must indemnify M.B., $4.2 million of the award will likely go unpaid.  

I am disappointed in the failure of many journalists to accurately report the facts of this case, and to once again spread false information about the legal system, especially relating to tort cases.   But then again, accurately reporting the facts is not good business for many “news” organizations, especially those in the conservative media that care little about the facts.  The attorneys at Plymale & Dingus care about the truth and about protecting the rights of injury victims.  While insurance companies have the resources to spend millions of dollars on misinformation campaigns, individual injury victims lack those same resources.   I hope that this article serves, in even a small way, to combat that effort.  

The Fallacy of Frivolous Lawsuits

The Perception

If you stop 10 people on the street and ask them about lawsuits, 8 or 9 of them will likely tell you that there are too many of them.  They will also likely tell you that frivolous lawsuits make up a generous percentage of those lawsuits, especially in injury cases, and that juries are “out of control” by either finding defendants responsible when they are not or by rendering large and unreasonable monetary verdicts. Many will claim that the legal system is broken and that government intervention is necessary to stem the tide of these frivolous actions.  However, neither the facts nor my personal experience supports this perception.

The Reality

According to a study conducted by the American Bar Association, fewer than 4% of civil cases filed in 2015 in U.S. state courts were “tort cases” and only 2 out of 1,000 people filed tort actions in 2015. [1]  A “tort” is simply a private or civil wrong that causes damage or injury to another person.   Contract cases accounted for the majority of these filings, and the majority of those were either debt collection or landlord/tenant matters.  In another study, of the tort cases filed in 2013, three-quarters of them resulted in recoveries of less than $12,200.00, and only .2% resulted in recoveries exceeding $500,000.00. [2]  That means that only 1 out of 250,000 people in 2013 received a recovery of more than $500,000.   Based on my experience as a trial lawyer, the people who comprise this .0004% likely suffered catastrophic injuries, including paralysis, loss of a limb or death.  On the other hand, 375 of them would have received a recovery of less than $12,200.

Notwithstanding the actual facts, large businesses, especially multi-billion-dollar insurance companies, have convinced the general public that too many frivolous lawsuits are being filed and that juries are rendering unfair and unreasonable verdicts.  I will agree with the insurance companies on one claim, that juries can render unfair and unreasonable verdicts, but for too little, not too much.  I have yet to review one case in Ohio where a jury rendered a verdict exceeding $500,000 against a defendant who was not liable and that did not involve a Plaintiff who had suffered serious and life-changing injuries.   On the other hand, I have seen numerous jury verdicts for less than even the Plaintiff’s medical bills.  However, I do not blame individual jurors for rendering such inadequate verdicts because the business community, especially insurance companies, have done such a great job of misleading and deceiving them.   Spending millions of dollars on a disinformation campaign will often have that effect (please see my next article about Geico’s efforts to misinform the public about a case involving a Plaintiff contracting the HPV virus).   

The Jury System

I have great faith in our jury system.  It is what largely sets us apart from other countries.  It is one of the few opportunities the citizens of this country have to ensure that the rights of all people are preserved.  The right to a jury trial in a civil action is guaranteed by both the U.S. Constitution in the 7th Amendment and in the Ohio Constitution in Article I, section 5.  Unfortunately, the Ohio legislature, along with the legislatures of several other states, with the support of the insurance industry, has seen fit to infringe upon that right by enacting “tort reform” measures, citing to non-existent frivolous tort actions and excessive jury verdicts, which we know do not exist.  In Ohio, any jury verdict exceeding $250,000, or $350,000 if the Plaintiff’s economic damages exceed $116,667.00, will be automatically reduced by the court unless the Plaintiff’s injuries are of a type contained on a small and limited list (and that amount has not been increased since the law was initially passed in 2005).   

In my experience, jurors are in the best position to decide what is fair and just – not elected officials sitting in the Ohio Statehouse who know absolutely nothing about the case being tried.  During a trial, juries will hear testimony from multiple witnesses, including expert witnesses like surgeons, engineers and scientists, and they will be able to review and scrutinize tangible evidence, which often includes medical records, photographs, diagrams, written statements, etc.  So, the clear message from our state government is that regular people are either too stupid to know what is fair and just or are not to be trusted, even though those same people considered the actual evidence in the case.  Rather, as our elected officials, they are just plain smarter and able to predict what is fair and just, without needing to consider the actual evidence.  The next time you vote, please pay special attention to the voting record of your state representative, state senator or governor.  I believe many of you will be surprised at how many of them vote to infringe the rights of the people in favor of the interests of big business.  

I will leave you with this last thought.  I have filed hundreds of tort cases in my 24-year career, and in almost every, single case, the defendant’s attorney has requested a jury trial.  A jury trial is not automatic.  At least one of the parties must formally request a jury trial or the case will be heard by the assigned judge.  To be clear, in almost every tort case, the defendant’s attorney is hired and paid by the defendant’s insurance company.  So, this begs the question: if juries are not to be trusted as the insurance companies have so claimed over the last several decades, why would the attorneys they hire request one?  The simple answer is that they have been given their cake and been allowed to eat it too.  They have convinced the Ohio legislature to limit a jury’s power, and Constitutional right, to render a verdict based on the actual evidence, and at the same time convinced the jury, before any evidence has actually been admitted, that frivolous lawsuits and excessive jury verdicts are rampant.  It’s a win-win for the billion-dollar insurance industry and a lose-lose for injury victims.  I, along with the other attorneys at Plymale & Dingus, have worked diligently over the years to fight and counter the misinformation campaigns of the insurance industry and its supporters.  I hope that this article continues to serve that effort, however small that impact may be.

[1] Cassens Weiss, Debra. “Tort Suits in State Courts Are ‘Down Sharply’ as Contract Claims Grow.” ABA Journal 26 July 2017.

[2] Civil Justice Initiative: The Landscape of Civil Litigation in State Courts

Anatomy of a Personal Injury Case: Motor Vehicle Collision

The Initial Stage: A Collision Occurs

When you are injured in a motor vehicle collision the very first thing you should do is to seek treatment immediately! If you are hurt, go to the emergency room or see a doctor so that they can determine the extent of your injury and recommend a treatment program. Delaying treatment can delay your physical recovery, signal to the insurance companies that the injury “wasn’t that bad,” and can also impact the believability of the claim, and in turn, affect the amount of the settlement or verdict. Additionally, delaying treatment can also call into question whether the injury was sustained during the incident or at another time.

The Claims Stage

In order to open a case, the injured person meets with an attorney todiscuss the case and share information regarding the collision and subsequent injury. During the initial consultation, the attorney gathers pertinent information to your case, including medical treatment, insurance coverage, names and information of the at-fault party, potential witnesses and photographs of the vehicles involved in the collision and evidence of your physical injuries. Once the initial meeting concludes and the attorney is retained, the attorney then delivers letters of representation to the appropriate parties, which typically include the at-fault driver’s insurance company and your insurance company. While the investigation is taking place, you should continue treating for your injuries and share all case-related information with your attorney or his assistant.

The Investigation Stage

After meeting with your attorney and providing all pertinent information, your attorney will take over. During this period, all the important parts of the claim are investigated, which may include speaking with your doctors, expert witnesses, fact witnesses, defense attorneys, and insurance adjustors. Your attorney’s primary responsibility is building a case on your behalf, utilizing the attorney’s specialized knowledge and experience. The role of the attorney at this stage is to do whatever needs done to maximize the client’s monetary recovery.

The Effort to Settle

Once the investigation is completed and you have been released from further medical care, the attorney will then compile a settlement package for the at-fault party’s insurance company. The settlement package is an orderly presentation of documents that demonstrate the loss you experienced as a result of the at-fault party’s negligence. These documents may include witness statements, medical bills, medical records, wage loss documentation, photographs, expert reports, and any other document that the attorney believes will fully demonstrate your loss (including inability to perform your usual activities, pain, loss of enjoyment of life, etc.). Once the package is submitted, the negotiation process begins. If the adjuster ultimately offers an acceptable amount of compensation, the case will be settled, but only with your consent. A Settlement typically requires the execution of a release of liability. However, if no agreement is reached, which is often the case at this stage, the attorney will likely recommend filing a lawsuit against the at-fault party.

Settlement during The Litigation Stage

The litigation stage begins when the attorney files a lawsuit on your behalf. Once the lawsuit has been properly served, the insurance company will hire an attorney to represent the at-fault party, who will file an “answer” on behalf of his/her client. The defense attorney will also submit written: “discovery requests” to your attorney, which are essential questions that you will need to answer and requests for copies of documents. Your attorney will also likely submit “discovery requests” to the at-fault party as well. Once discovery is complete, but some time before it is complete, depositions of the parties are typically scheduled. A deposition is a legal device utilized by attorneys to obtain testimony under oath from the other party or a witness prior to trial. The testimony is recorded by a stenographer that can later be transcribed for use at trial or in support of a motion. Depending on the complexity of the case, the litigation process can take anywhere from six months to two years to be completed.

Resolution Before or After Trial

Once a lawsuit has been filed, there are 4 primary ways that your case will be resolved: 1) an out-of-court settlement through informal discussions with the defense attorney or insurance adjuster or 2) a formal settlement conference with a trained mediator (referred to as a mediation), 3) the issuance of a “summary judgment” (granting judgment in favor of one party on a legal issue), and, finally 4) by a jury verdict. Many times, before a jury trial, the at-fault insurance company will make a final effort to resolve the case. If both parties accept the settlement, then the case is resolved, and the lawsuit will be dismissed. If the parties are unable to reach a settlement, either informally or at mediation, and summary judgment has not been granted to one of the parties, the case will proceed to a jury trial. Jury trials can take as little as two days to complete, or in a complex case, multiple weeks to complete.