Defense: Surveillance thwarts felon's frivolous lawsuit

CLARKSBURG - Charleston attorney Jim McQueen admits that he may have become a little long-winded during a recent closing argument that he based on the idea of credibility. Once things started, he says the material just kept coming to him.

Eventually, his message was received by a federal jury in Clarksburg that sided with an insurance company charged with unfair claims settlement practices by a family involved in a car accident.

"As the case went on, things just kept getting better for us," McQueen said.

A seven-day trial in November led to Paul and Erin Nicholas' bad faith case failing, their claims against Bituminous Casualty Corp. shot down after a little more than an hour of deliberation. Husband Paul's checkered past and surveillance footage of wife Erin apparently using the left hand she claimed was paralyzed in the accident to perform everyday tasks, McQueen said, were key.

The Nicholases were represented by Ancil Ramey of Steptoe and Johnson, one of the state's largest law firms. Ramey said he preferred not to comment on the case because his motion for a new trial is pending.

McQueen, though, said he wasn't worried about that motion partly because of the evidence he was able to amass. During discovery, McQueen had to travel to Florida to take a video deposition of Erin Nicholas, during which she claimed her left hand was paralyzed in the wreck and acted accordingly.

She didn't know that a private investigator had been following her around for a week before the deposition and would continue a week after.

McQueen said the P.I. took footage of Nicholas performing ordinary tasks with her left hand, such as brushing her hair and putting on makeup.

"Most defense lawyers do it, but we don't always use it," McQueen said. "When you suspect exaggeration, magnification of injuries, it's perfectly legal to have a P.I. try to video a person off their property. Out in public, they're just as vulnerable as anyone else to being videotaped."

Ramey argued that the video, taken after a settlement had been reached, had nothing to do with the bad faith claim against Bituminous, but Judge Irene Keeley agreed with McQueen that the video spoke to the credibility of the Nicholases' words.

The family's claim started with the November 2001 accident in which an employee of Northeastern Energy Consulting allegedly rear-ended their 2000 Mercedes E 320.

Almost two years passed before Ramey filed the lawsuit, and McQueen said negotiations for a settlement started far apart. Ramey was asking for $4 million, while Bituminous was only willing to offer $150,000.

The day before trial, they settled for $700,000. McQueen said Ramey was unhappy with the settlement procedure from the start, and had added a bad faith claim early on to the underlying lawsuit.

Discovery on that claim was stayed until after a settlement or jury verdict could be reached.

"He'd already decided to go with the bad faith case, he was trying to set it up," McQueen said. "Early on, it was only two or three weeks after he made his first demand he was screaming 'Bad faith.'"

But Bituminous argued they had reason to be suspicious.

"I could probably name 50 or 60 things we uncovered," McQueen said.

And he used them all to defend his client's right to investigate a lawsuit before settling it. The $700,000 settlement came, largely, as a result of the Nicholases' surgeries.

"We can give people the benefit of the doubt if they go under the knife and anesthesia. You really gotta be able to prove it was unnecessary if they go through all that," McQueen said. "I don't know that (they did or didn't need surgery). It could've been a doctor who was knife-happy. I don't know."

McQueen said he found evidence that:

* Weeks before the accident, Paul Nicholas had written a doctor to ask him to declare his wife disabled, allowing her to claim her retirement fund from the Teachers Retirement Board;

* Surgeries and injuries attributed to the accident may have been caused by pre-existing injuries;

* The wreck would have only caused soft-tissue damage and that the plaintiffs reported to the urgent care section of the hospital in Clarksburg five hours after the accident. Upon their release, they made the long drive to Pensacola, Fla. Months later, Paul Nicholas said he needed surgery on his lower back as a result of the accident;

* Surgeries were performed without notifying the Bituminous claims representative beforehand;

* That Paul Nicholas was a scam artist and that, despite his $350,000 home at a country club and brand new Mercedes, had not reported more than $14,000 of yearly income on his tax return forms the past 20 years. The most Erin had reported was $40,000.

* And that Paul Nicholas had had problems with telling the truth before.

"You don't very often have a claimant in a car wreck who's a convicted felon," McQueen said.

Paul Nicholas was arrested about a month before the November 2001 car accident and later convicted of uttering, a crime related to counterfeiting but with non-official documents. A forgery charge didn't stick, though he was still sentenced to 90 days in prison. McQueen said the sentencing order was sent to the Internal Revenue Service and the Social Security Disability Administration, among other agencies, but the exact nature of the crime isn't known.

Since his felony crime involved truth and veracity, McQueen argued that the incident was relevant to the case questioning the family's credibility.

And in a subject-field as confusing as insurance law, that simple idea of credibility, McQueen said, is what stuck with the jury.

"This is blatantly wrong. She's using false information to get a retirement early and get herself disabled," McQueen said. "Mr. Nicholas was kind of like the lovable rogue. I think that's how the judge put it. And she was just as big a con-artist as he was."