Published on:

During the trial, the contractor adduced proof regarding the extent

A contractor who owned a home improvement company obtained a contract to renovate a couple’s home. The man worked on the couple’s home: he was up on the roof supervising the repair of the roof when he slipped and fell. He hit his head and sustained a brain injury.

He filed a personal injury complaint against Workmen’s Compensation, against his own company and against the couple who owned the house he was renovating. In that personal injury case, trial was held to determine if the brain injury sustained by the contractor qualifies as a grave injury under the Workmen’s Compensation Law.

During the trial, the contractor adduced proof regarding the extent and nature of his brain injury. His medical experts testified that the contractor had cognitive dysfunction which permanently disabled him from doing any work. The insurance company provided its own expert who conducted a neuropsychological evaluation of the contractor. The expert of the insurance company found that the contractor’s brain injury was severe and traumatic such that he has lost the ability to make decisions required in daily life.

The contractor’s home improvement company was insured for Workmen’s Compensation by an insurance company. During the trial to determine the extent of the grave injury sustained by the contractor, the insurance company sent its lawyer who fully and knowingly participated in the trial even though it was not a party to the said personal injury action. The insurance company was allowed to propound questions to the witnesses presented during the trial. At the end of the trial, the court declared that the contractor suffered a grave brain injury. The contractor was then given an award of damages amounting to about $6,500,000.00 which the couple and the home improvement company immediately paid and settled. The home improvement company and the owners of the house then seek reimbursement or contribution from the insurer of the home improvement company.

The insurance company then filed a case where it seeks a judicial declaration that it is not bound by the findings during the personal injury proceedings that the contractor sustained a grave injury. The only question before the Court is whether or not the insurance company is not bound by the findings in the personal injury action that the contractor sustained a grave injury.

The Court held that in order for the insurance company to be held as bound by the findings in the personal injury case, there must be proof that it was a party to the personal injury case or at least privy with any of the parties in that case; the interests of the insurance company were represented during the trial; and the insurance company had a fair opportunity to fully participate in litigating the issue of the nature and extent of the contractor’s brain injury.

The extent and nature of the contractor’s brain injury were fully litigated in the personal injury action. Because the insurance company provided its own expert to examine the contractor, the insurance company is deemed to have been given a fair and full opportunity to be privy to the litigation. Because the insurance company was allowed to propound questions to the witnesses, it is inevitable to conclude that it was given the opportunity to litigate the issue.
For these reasons, the insurance company can no longer be allowed to re-litigate the issue of whether or not the contractor sustained a grave injury. This action for judicial declaration must be dismissed. The insurance company is estopped or barred from re-litigating this issue again.

Are you claiming damages for work-related brain injuries sustained during the course of your employment? Are you claiming from the insurer of your company? You need to be represented by a Nassau Brain Injury Lawyer. A Nassau Brain injury attorney can help you prove that the brain injury sustained was grave injury as defined by the Workmen’s Compensation Law. At Stephen Bilkis and Associates, their Nassau County Brain injury attorneys can help you gather medical evidence and present these in court. The Nassau County Brain Injury lawyers from Stephen Bilkis and Associates can help argue your case in court. Call or visit the offices of Stephen Bilkis and Associates in Nassau County today.

Contact Information