Crash victim sues for disability payments

Published: Sunday, March 14, 2010

By MICHAEL P. RELLAHAN, Staff Writer

WEST CHESTER - Leo McCarthy has seen his share of hardships since the night four years ago when a drunken driver plowed into the car he was driving, causing injuries that left him confined to a wheelchair and legally blind.

But despite the quality of life obstacles, physical pain and mental trauma the crash and its aftermath threw at him, McCarthy felt he could still count on his monthly disability insurance checks from his work as a Chester County prison officer. The roughly $2,000 he got in the mail helped him and his wife pay living expenses at their Landenberg home.

That peace of mind was shattered last month.

McCarthy received notice from the Life Insurance Co. of North America that unless and until he paid the company more than $19,000 it contends he was overpaid, it would stop sending the monthly checks.

According to the attorney who took up McCarthy's cause this month to get the payments restored, the notice left him emotionally distressed.

"The suspension of payment is punitive, contrary to the (disability policy), and is a malicious, wanton and wrongful act by (the insurance company), knowing that (McCarthy) is suffering severely from the bodily and mental injuries sustained in the accident," wrote West Chester attorney Lawrence Goldberg in a suit against the company filed last week.

On Friday, Common Pleas Judge Ronald Nagle ordered the company, a division of Cigna Insurance with headquarters in Philadelphia, to immediately make a disability policy payment of $1,135.23 - about half of what McCarthy had been receiving.

Nagle's decision followed an injunction hearing during which no attorney for the company appeared.

In his suit against the insurance company, Goldberg said he received little response from the firm while trying to settle the matter out of court.

"All efforts by the plaintiff have failed to produce any response other than: 'When he pays the overpayment in full, we will resume payments,'" Goldberg said.

Attempts to reach the company for comment on the matter Friday were unsuccessful.

McCarthy, 38, nearly lost his life in the crash that cost him his job and his health. About 3 a.m. Sept. 10, 2006, a car driven by an unlicensed driver who had been drinking heavily collided head-on with McCarthy's Jeep Wrangler on Marshallton-Thorndale Road.

McCarthy and his then- fiancée and now wife had been driving two lost strangers they met in Painters Crossroads to a friend's home for a weekend wedding.

The case was subject of a three-part series in the Daily Local News chronicling the struggles of McCarthy, his family and fiancée after the crash.

His injuries were beyond extensive and serious: a broken hip, a broken pelvic bone, broken ribs, collapsed lungs, a damaged liver, a ruptured spleen and a torn aorta. McCarthy's journey from near death to permanent disability included more than 50 surgeries and almost half a year in two hospitals.

"I can't even dress myself," McCarthy told the judge who sentenced the other driver, Efrain Rojas Romero, in 2007 to serve up to 16 years in state prison for the crash. "My fiancéee has to help me dress and shower."

As a corrections officer, McCarthy was entitled to disability a policy with the county. He filed for long-term benefits and began receiving $2,235.23 a month.

Later, he also applied for Social Security disability payments and began receiving them, dutifully notifying the insurance company of those payments, according to his lawsuit.

"At all times," the suit states, McCarthy "expected that (the company would) reduce his long-term disability payments by an appropriate amount."

The complaint states he did not anticipate that he would receive the insurance payments without an adjustment for the Social Security payments.

But he said the company never adjusted the payments.

On Feb. 11, the company demanded full payment of $19,485.80 that it claimed it had overpaid to McCarthy. It said it would discontinue the monthly payments until the overpayment was returned.

When Goldberg attempted to contact the company to work out a repayment schedule, according to the lawsuit, the insurance firm "failed to respond."

Stopping the payments left the McCarthy's with a financial hardship; they depended on the money to pay for food, credit cards and other living expenses, Goldberg said Friday after the injunction hearing.

Goldberg said the company knew the extent of McCarthy's injuries, including the posttraumatic stress he suffered, "which is being aggravated by the callous and irresponsible position" taken by the insurance company.

The suit filed Wednesday asks for damages for breach of contract, stating that the company had no provision in the policy to stop the payments. It also alleges negligence, infliction of emotional distress and bad faith.

In his order, Nagle left open the schedule that McCarthy will set up to repay the amount he acknowledges that the insurance company is owed.

Goldberg said he hopes to begin working out the scheduled payments with the company as soon as it responds to Nagle's order to resume sending the monthly payments.

To contact staff writer Michael P. Rellahan, send an e-mail to mrellahan@dailylocal.com.

Reprinted here with the permission of The Daily Local News.