CVN screenshot of plaintiff attorney Sean Claggett delivering his closing argument
Denver, CO - A Colorado state court jury saddled a Berkshire Hathaway-owned insurer with a $145.26 million verdict on Wednesday, including punitive damages, in a lawsuit filed by painter who accused the company of failing to approve treatment for a major traumatic brain injury, and the full trial was recorded gavel-to-gavel by Courtroom View Network.
Plaintiff Fermin Salguero-Quijada sued Norguard Insurance Company alleging they acted in bad faith by refusing to pay for specialized inpatient rehab treatment after he fell from a ladder while painting apartment complexes in Utah. His lawsuit alleged that denial of treatment caused his neurological injuries to become permanent, but Norguard maintained throughout the trial they made reasonable coverage determinations based on recommendations from Salguero-Quijada’s own worker’s comp physician.
The verdict, including $60 million in punitive damages, far surpasses Norguard’s pre-trial settlement offer of $750,000 according Salguero-Quijada’s attorney, Sean Claggett of Claggett & Sykes Trial Lawyers, who predicted the award would land in nearly the exact range his extensive pre-trial focus group work indicated.
The full trial was recorded gavel-to-gavel by CVN. Subscribers to CVN’s online trial video library get unlimited on-demand access, along with hundreds of other trials featuring many of the top plaintiff and defense attorneys in the country. Not a member? Sign up for a monthly or annual CVN video library subscription today.
During the trial Claggett told jurors that Salguero-Quijada initially made good progress following his 2021 accident, but he said that was all wasted after Norguard refused to pay for a long-term specialized rehab facility after discharge from the hospital. Instead a still badly disabled Salguero-Quijada was loaded onto a commercial flight and sent home to be cared for by relatives.
Norguard cited the $2.1 million it already paid out for Salguero-Quijada’s care and the millions more it would pay in wages and benefits for the rest of his life as evidence they met their obligations, but their attorneys insisted they acted reasonably by following the recommendations of Salguero-Quijada’s worker’s comp physician, even though they conflicted with his treating doctors at the hospital.
Claggett described a lengthy and complex series of settlement negotiations, which he said essentially resulted in the trial getting underway as a “zero offer” case.
He told CVN his team rejected Norguard’s initial $750,000 pre-trial offer, and at a final settlement conference made a demand in the range of $15 million and $56.6 million. He said after voir dire the defense made a $4 million offer that he ignored, resulting in the defense withdrawing that before openings and the trial commencing in a zero-offer posture.
An attorney for Norguard did not respond to a request for comment from CVN.
During the trial Claggett said he shared his focus group data analysis with the defense showing a likely verdict in excess of $114 million with $60 million in punitive damages, and he offered to settle the case for a $75 million lump sum or with a high/low agreement of $10 million and $85 million. After closing arguments the defense made a final settlement offer of $3 million, which Claggett rejected.
“I was running real time data on the trial, and explained to Berkshire that we would be in a position to send a detailed offer on Sunday, once I had my data report that covered the first week of trial,” Claggett explained.
Claggett has built a nationwide reputation as one of the pre-eminent experts in the use of pre-trial focus groups and big data analysis to lock in the likely value a jury will place on a case before ever setting foot inside the courtroom for trial. He noted this was the first time he tried a case with Alicia Campbell, co-author of the popular trial strategy guide JuryBall. He said an extensive case study of the trial would serve as the basis for their upcoming sequel, JuryBall 2 – The Evolution of Data.
“We were implementing cutting edge data analysis throughout the trial in real time,” he said. “This was a fascinating look at how real evidence impacts verdicts and decision making.”
Claggett said proving causation was the most difficult aspect of the case, and that his team had the challenge of establishing the bad faith denial of the claim that caused Salguero-Quijada not to be transferred to an inpatient program ultimately resulted in physical impairment. However he cited the testimony of one of their expert neurologists as playing a crucial role in making the connection for the jury.
“Dr. Allison Gray was fantastic and all of the medical literature in the world supported her opinions, as did her personal experience in treating brain injured patients,” Claggett said.
Claggett lamented that Colorado is one of the few states where injured workers can pursue bad faith claims against workers comp providers, which leaves many injured workers without any recourse to fight wrongfully denied claims.
“The simple truth is that injured workers and their employers are taken advantage of and candidly screwed over every day by greedy insurance companies, like Berkshire,” he explained, noting that these practices hurt workers and businesses, since not getting workers back on the job as quickly as they otherwise should can hurt a company’s bottom line.
Claggett said while his client’s family would give anything to go back in time and get Salguero-Quijada the treatment he needed, that at least the verdict ensures a financial safety net as he and his family face the challenges of caring for him.
“Fermin will be able to ensure his financial and physical wellbeing as a result of this verdict,” Claggett said. “For that he is forever grateful to the jury for their courage to stand up for him against a massive insurance company like Berkshire Hathaway.”
The trial took place before Judge Sarah Wallace in Colorado’s 2nd Judicial District.
The case is captioned Fermin Salguero-Quijad v. Norguard Insurance Company, case number 2023CV32798.
E-mail David Siegel at dsiegel@cvn.com
