Low Property Damage Can Still Cause Significant Bodily Injury

Low Property Damage Can Still Cause Significant Bodily Injury

In the evaluation of personal injury claims, insurance carriers often stand firm on the position that minimal vehicle damage means there can only be minimal bodily injury to those involved. It is a contention that both plaintiff and defense attorneys who litigate personal injury cases vehemently struggle to negate or uphold in cases of minimal vehicle damage. Consequently, these types of cases have served as a bedrock for countless, costly personal injury litigation.

It seems logical enough to assume that an accident with limited visible damage to the vehicles involved would not result in any substantial injuries. However, there have been a number of studies conducted on the subject and the majority have shown that there is a negligible correlation between vehicle damage and the extent of bodily injury in motor vehicle accidents, and as vehicle bumper technology advances, the correlation continues to diminish.

MIST protocol

As is true with any business model, insurance companies have protocols and strategies to control their exposure. One such protocol, relevant to this discussion, is MIST (Minor Impact Soft Tissue) protocol. As the name suggests, MIST protocol treats “minor impact” accidents and “soft tissue” injuries as exclusive to one another and uses the protocol as a basis for segmenting claims resulting from accidents producing property damage less than a predetermined dollar amount, generally set at $1,000. Intrinsic to MIST protocol is the synonymous use of the terms “minimal damage accidents” and “minor impact accidents,” thus, characterizing “minimal damage accidents” as those that produce only soft tissue injuries, which research has shown to be inaccurate.

In addition to successfully controlling insurance company exposure, the strategy is often successful in discouraging costly litigation, despite studies indicating that there is a lack of relationship between vehicle damage and occupant injury in an accident. In many cases of minimal vehicle damage, it is possible for insurance defense counsel to use photographs to convince the jury that bodily injury is unsubstantiated. Faced with the cost of obtaining experts to sufficiently educate a jury, plaintiff’s attorneys will often shy away from litigating these cases or even avoid taking them altogether, often leaving “low property damage” claimants with legitimate injuries without representation in prosecuting their claims.

Evaluation of occupant bodily injury

While insurance carriers have a proclivity to evaluate bodily injury based on visible damage to the occupied vehicle, it is important for attorneys and claimants to understand that damage to a vehicle involved in an accident falls short of being an indicator of the extent to which the occupants sustain injury.

Accident reconstruction experts determine the severity of a vehicle to vehicle impact by calculating the change in velocity at the time of a collision, referred to as the “Delta V,” a calculation involving a number of variables including velocity, mass, weight, the ability of the involved vehicles to dissipate the energy of the impact, and the initial position of the occupant in relation to seatbelts and airbags. Simply put, Delta V is the change in a vehicle’s speed when it strikes or is stricken by another vehicle. In essence, the greater the change in speed, or Delta V, the greater the chance of substantial bodily injury, but this does not mean that an accident resulting in a low Delta V is one without injurious results.

One particular study has shown that an impact with a Delta V as low as 2.5 mph may produce symptoms and that vehicle damage may not occur until 8.7 mph. To clarify the meaning of this study’s conclusion, think of an egg dropped from a short distance to the ground. While the egg’s shell may maintain its structural integrity without cracking, one can be certain that the egg’s contents were jolted upon impact, just as a vehicle’s occupants would be jolted in an accident producing minimal vehicle damage.

While accident reconstruction experts may be able to determine the severity of collisions, they lack medical training, education, or experience that qualify them to speak to the injuries of the occupants. In other words, a professional with expertise in one particular field may not provide testimony on a subject matter in which they are not experts. See Hallmark v. Eldridge, 189 P.3d 646, 124 Nev. 492 (Nev., 2008).

Thus, bodily injury analysis must be performed by a medical expert, who must consider many variables different from those used by the accident reconstruction expert, including the occupant’s sex, age, bone and joint strength; geometric dimensions; muscular stimulation in anticipation of the impact; etc.

Impact resilience of modern vehicles

The utilization of expert testimony has quickly become a necessity in asserting the rights of individuals involved in accidents producing minimal property damage. This is due largely to the incredible ability of modern vehicles to absorb the energy of an impact without sustaining visible damage. While this is good news in terms of the cost of vehicle repairs, it does not bode well for the occupants to whom that energy is transferred. With the increasing technology used to maximize the resilience of vehicle bumpers, there is an increased threshold for impact severity and vehicle damage, while the threshold for occupant injury has remained largely stagnant. What this means for claimants is an increased number of those categorized as MIST claims are poised to be compensated minimally for their injuries.

Litigation issues

The admissibility of evidence depicting low property damage is a highly contested issue in numerous litigated matters. There is a question whether or not such evidence may create unfair prejudice and whether its admissibility is proper before a jury.

In Moor v. Lee, 210 P.3d 753 (Nev., 2007), the Supreme Court of Nevada upheld the admissibility of photographs that depict minimal damages of the vehicle, and the admission of the photographs was highly favorable to the defense.

However, in Rish v Simao, Case No 07A539455 (NV 8th Jud. Dist. Ct. 2007), in which plaintiff sustained minimal property damage, plaintiff’s counsel sought to exclude evidence of property damage and damage estimates from admission due to its prejudicial effects, and are thus improper to be introduced. The District Court granted plaintiff’s motion in limine to exclude the admission of photographs and repair invoices and limited the defense’ medical expert in offering opinions extrapolated from property damage. This case is on appeal to the Supreme Court of Nevada (No. 58504, Sept. 4, 2012). Low property damage accidents continue to be a source of contention for litigants due to its complexity and shortage of precedents. Therefore, counsels should not make the assumption that low property damage cannot result in significant bodily injury should such cases ripen into litigation.

Low property damage accidents continue to be a source of contention for litigants due to its complexity and shortage of precedents. Therefore, counsels should not make the assumption that low property damage cannot result in significant bodily injury should such cases ripen into litigation.