United States District Court, D. Maryland
Richard D. Bennett, United States District Judge
Valery Rozinsky (“Plaintiff” or “Mr.
Rozinsky”) has brought this one-count breach of
contract action against Defendant Assurance Company of
America (“Defendant” or “Assurance”),
seeking uninsured/underinsured motorist (“UIM”)
benefits under a motor vehicle insurance policy issued by
Assurance to his former employer, Milhouse, LLC d/b/a Edible
Arrangements (“Edible Arrangements”). Mr.
Rozinsky has filed this claim in connection with an October
22, 2012 automobile accident, in which he was seriously
injured while driving a work van owned by Edible
Arrangements. See Compl., ¶¶ 1-12, ECF No.
2. The parties agree that Mr. Rozinsky is entitled to UIM
benefits as he was not at fault in the accident, and the
other driver causing the accident had limited insurance
coverage. It is further agreed that Mr. Rozinsky has incurred
a total of $16, 774.15 in medical expenses as a result of the
accident and that he was out of work for approximately two
years after the accident. Mr. Rozinsky lived and worked in
Maryland at the time of the accident, but has since moved to
Florida and now operates his own fingerprinting, drug
testing, and medical testing company. Although he continues
to feel pain in connection with his accident injuries, it
does not interfere with his work, and the pain is limited to
his left arm and neck. The parties have stipulated that
Assurance is liable to Mr. Rozinsky for UIM benefits under
the Milhouse, LLC d/b/a “Edible Arrangements”
policy. Accordingly, this case proceeded to a one-day bench
trial before this Court on Tuesday, August 1, 2017 on the
issue of damages alone, at which time this Court heard the
testimony of two witnesses: Mr. Rozinsky himself and Kathy
Stone, Mr. Rozinsky's expert in “vocational
assessments, ” who testified that Mr. Rozinsky is
no longer employable as a result of his accident
reasons stated herein, and by stipulation of the parties,
this Court now concludes that Defendant Assurance Company of
America is liable to Plaintiff Valery Rozinsky under the
Milhouse, LLC d/b/a “Edible Arrangements”
uninsured/underinsured motorist (“UIM”) policy.
Accordingly, Judgment shall be entered in favor of Mr.
Rozinsky as to his claim for breach of contract. As to
damages, the only contested issue before this Court, this
Court concludes that Mr. Rozinsky has suffered economic
damages in the total amount of $73, 272.55 as a result of his
October 22, 2012 accident, including stipulated medical
expenses of $16, 774.15 and an undisputed $56, 498.40 in lost
wages over the approximately two years following the
accident. Although Mr. Rozinsky has sought an additional
$149, 093.00 for future lost wages, that shall not be
awarded. This Court is not persuaded by the testimony of
Kathy Stone that Mr. Rozinsky is no longer employable. On the
contrary, he has in fact been employed as a fingerprint
technician since September of 2014 and now operates his own
fingerprinting, drug testing, and medical testing company. He
has testified that his work, which includes packing and
unpacking fingerprinting gear, transporting his gear,
traveling to meet customers, and guiding customers through
the fingerprinting process, does not aggravate his accident
this Court shall exercise its discretion to award
non-economic damages for Mr. Rozinsky's pain and
suffering as a result of the accident in the amount of $236,
205.00. Although he is employable, it is undisputed
that Mr. Rozinsky's injuries have reached maximum
recovery and that he will continue to experience some pain
for the rest of his life. Therefore, Assurance Company of
America is liable to Plaintiff Valery Rozinsky in the total
amount of $309, 477.55.
to Rule 52(a) of the Federal Rules of Civil Procedure, the
following memorandum constitutes this Court's findings of
fact and conclusions of law.
Rozinsky filed this action in the Circuit Court for Baltimore
County, Maryland, but Assurance has removed this case to this
Court based on diversity of citizenship, pursuant to 28
U.S.C. § 1332. See Notice of Removal, ECF No.
1. Initially, Mr. Rozinsky brought a second count against
Assurance, jointly with his wife, Galina Rozinsky, alleging
loss of consortium in connection with the same accident and
his subsequent injuries. Compl., ¶¶ 13-14, ECF No.
2. However, this Court has subsequently dismissed Court Two
and, accordingly, has dismissed Galina Rozinsky as a party in
this action with prejudice. See March 4, 2016 Mem.
Opinion and Order, ECF Nos. 14 & 15; Rozinsky v.
Assurance Co. of Am., No. RDB-15-02408, 2016 WL 927147,
at *1 (D. Md. Mar. 4, 2016). Additionally, prior to trial,
Assurance moved to exclude the expert opinion testimony of
Kathy Stone, Mr. Rozinsky's vocational assessments
expert, under Rule 702 of the Federal Rules of Evidence.
See Mot., ECF No. 27. This Court denied that motion
via Memorandum Opinion and Order dated July 21, 2017 (ECF
Nos. 30 & 31) although, as discussed herein, this Court
ultimately finds Ms. Stone's testimony unpersuasive. This
case proceeded to a one-day bench trial before this Court on
Tuesday, August 1, 2017 as to the amount of damages owed by
Defendant Assurance Company of America to Plaintiff Valery
Rozinsky under the Milhouse, LLC d/b/a “Edible
Arrangements” uninsured/underinsured motorist
conducted a one-day bench trial on August 1, 2017, having
heard the testimony of Plaintiff Valery Rozinsky and Kathy
Stone, Mr. Rozinsky's expert witness in “vocational
assessments, ” and having considered the documentary
evidence submitted by the parties, this Court makes the
following findings of fact:
Valery Rozinsky (“Plaintiff or “Mr.
Rozinsky”) was born on November 16, 1956 in the country
of Moldova-at that time a republic of the former Soviet
Union. Trial Tr., p. 9. He received what he has characterized
as a “high school” education in that former
Soviet republic and worked for a number of years in a
state-operated shoe factory before joining the military,
where he remained for two years and attained the rank of
Sergeant. Id. at 10-11. At the conclusion of his
military service, Mr. Rozinsky continued to work as a
shoemaker. Id. Then, between 1989 and 1990, he
immigrated to the United States by way of Vienna, Austria and
Rome, Italy. Id. at 11. Mr. Rozinsky is now an
America citizen. Although he lived and worked in Maryland at
the time of the accident discussed herein, he now resides in
the state of Florida with his wife, Galina Rozinsky.
Id. at 12, 37. Mr. Rozinsky is now sixty years old,
although he was fifty-five at the time of the accident.
arriving in the United States, Mr. Rozinsky worked as a
painter for two years, from approximately 1990 to 1992.
Id. at 12. In that time, he painted “[h]ouses,
buildings, fence[s], whatever [he had] to paint.”
Id. He then worked for about 14 to 15 years as a
taxi cab driver for the Yellow Cab and BWI Cab companies,
often taking on “side jobs” in construction after
airport traffic slowed in the wake of the September 11, 2001
terrorist attacks. Id. at 13. In 2006, Mr. Rozinsky
left his work as a cab driver to open his own contracting
business. Id. He completed a wide range of small
construction jobs, including kitchen and bathroom remodeling,
tiling, painting, wall moving, and wall installation.
Id. That business closed as the economy slowed in
late 2008, after which time he began working as a driver for
Milhouse, LLC d/b/a Edible Arrangements (“Edible
October 22, 2012, Mr. Rozinsky was completing a delivery for
Edible Arrangements when another car struck his vehicle.
Id. at 14. That other vehicle was driven by a man
named Paris David, Sr., and it is undisputed that Mr. David
was at fault in the accident. At that time, Mr. Rozinsky was
driving a van owned by Edible Arrangements, and the impact of
the collision caused the van to tip over onto its left side.
Id.; Photographs of Accident Scene, Ex. 1. Emergency
responders cut the van's windshield to remove Mr.
Rozinsky from the vehicle and transported him to a hospital.
Id. at 14-16. Mr. Rozinsky suffered chest pain after
the accident, although that pain went away after six months.
Id. at 17. Additionally, he experienced swelling and
tingling in his left hand, pain in his left arm and
shoulders, and neck pain. Id. at 17, 19-20. Despite
physical therapy, cortisone treatments, and several epidural
shots, Mr. Rozinsky still feels pain to this day.
Id. at 17-18. Although doctors have given him the
option of a complex spinal surgery that could potentially
alleviate his symptoms, he has declined Id. at 18.
It is undisputed that, absent surgery, Mr. Rozinsky's
injuries have reached maximum recovery and that he will
continue to experience some pain for the rest of his life,
although he manages that pain with medication.
parties have stipulated that Mr. Rozinsky incurred a total of
$16, 774.15 in medical expenses as a result of injuries
sustained in the October 22, 2012 accident. See
Stipulation of Fact, No. 1; Trial Tr., pp. 21-22.
Additionally, Mr. Rozinsky's treating physicians did not
permit him to return to work until after August 16, 2013,
almost one year after the accident, and only then on
“light duty, ” meaning “no lifting greater
than 5 lbs and no prolonged head and neck positioning.”
See Physician Orders, Ex. 20. The parties have
stipulated that Mr. Rozinsky's average weekly wages at
the time of the accident were $560.50. See
Stipulation of Fact, No. 3. When Mr. Rozinsky did finally
return to work after August 16, 2013, Edible Arrangements did
not have any “light duty” work available. Trial
Tr., pp. 34, 37; Stipulation of Fact, No. 5. Accordingly,
around that time, Mr. Rozinsky and his wife moved to Florida,
where his wife found a job working as a nurse. Id.
Rozinsky remained unemployed for the entire year following
his August 16, 2013 authorization to return to work on
“light duty.” Finally, in September of 2014, Mr.
Rozinsky began working as a fingerprint technician, initially
as a contractor for a fingerprinting company. Id. at
38-41; Stipulation of Fact, No. 8. That job included
collecting information from customers, rolling their fingers
on an electronic device, and submitting their information and
prints to various government agencies for review. Trial Tr.,
p. 38. Additionally, Mr. Rozinsky was required to transport
his fingerprinting equipment, including a laptop, scanner,
power supply, and small camera, in a suitcase to and from
various locations. Id. at 39-41; Photographs of
Gear, Exs. 22A-C. He has continuously worked as a fingerprint
technician since September of 2014 and is currently
self-employed in that capacity. Stipulation of ...