Woman trying to collect after insurer labels traffic accident 'act of God'
Published: Friday, March 22, 2013 at 7:56 p.m.
Last Modified: Friday, March 22, 2013 at 7:56 p.m.
Tracy O'Dell might as well have been struck by lightning or swept away in a flash flood.
The Glen Ellen woman was sitting at a stoplight in front of Santa Rosa Plaza in 2011 when she was rear-ended by a man in a PT Cruiser going about 40 mph.
Her 2004 Honda Accord was smashed beyond repair and she was hospitalized with four bulging disks that left her in almost constant pain.
When she turned to the driver for compensation for $33,000 in medical and car expenses, she was told he wasn't responsible for the crash because he was having a heart attack at the time.
His insurance company viewed it as an “act of God,” she said, because it was caused by an unexpected medical condition.
“It's just so unfair to me,” said O'Dell, 49. “Why should I suffer because he had a heart attack?”
Fair or not, act-of-God claims have been upheld in California courts — and they don't require a freak weather event, rising waters or an earthquake.
If an insurance company can prove a policy holder's actions were caused by a medical condition that came on without warning they could escape liability, said William Robertson, dean of Empire College School of Law in Santa Rosa.
Of course, that means the person can have no pre-existing health problems or record of treatment for ailments that would put them at a reasonable risk of collapse, Robertson said.
Then it is possible to trigger insurance policy language that nullifies coverage, Robertson said.
“It has to be literally out of the blue,” Robertson said.
However, he said the claim is rare and could be defeated by a lawyer who digs into the details of the medical emergency to determine if it was truly unforeseen.
He said he's seen insurance companies win twice in 40 years.
O'Dell said she's hoping things will go her way after the crash that changed her life.
It happened July 23, 2011, after she dropped off a friend's daughter at the mall. She was driving south on B Street when she was hit from behind by a car driven by Franklin Barnes, then 60, of Alameda.
The force shoved her car into the car in front of her and wrenched her neck. As paramedics arrived, she watched from her crumpled Honda as Barnes was lifted from the wreckage and laid out on the sidewalk, where he was resuscitated by emergency crews.
She said Barnes recovered after being treated at a local hospital but was in poor health.
A few weeks later, she called Barnes' insurer to get reimbursed for a rental car. She only carried liability because her car was paid off. That's when she learned Farmers Insurance wouldn't cover it because of Barnes' medical emergency.
Farmers spokesman Mark Toohey confirmed his company's position Friday.
“If there's a medical crisis like a heart attack, there's no negligence,” Toohey said. “That is called a medical defense. It's a clause or provision that is standard in auto insurance policies. It's not something that's unique to Farmers.”
Still, O'Dell racked up $20,000 in medical bills and took a $13,000 loss on her car. She didn't qualify for assistance because she and her husband owned a house.
O'Dell sued Barnes for damages. The case is set for trial, but a judge has ordered both sides to participate in mediation.
Barnes' lawyers have filed a motion to have the case dismissed. They declined comment.
O'Dell has obtained Barnes' medical records.
The court file includes a statement from a Sacramento doctor who concluded Barnes was at low risk of heart attack despite a diagnosis of hypertension and previous visits to a cardiologist. His evaluation noted Barnes complained of work-related stress three days before the crash.
O'Dell said she believes Barnes knew he had a problem. She'd like to see the law change so that others won't have to go through what she has.
“What's happening to me is not right,” she said. “I just want my neck fixed and my car replaced.”
You can reach Staff Writer Paul Payne at 568-5312 or email@example.com.
All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.