Prior Court Decision Holding Denial Invalid Gets Collateral Estoppel Effect

Saturday, December 2, 2006 | 0

By Larry Rogak

Tarek Abdelhaq v. Global Liberty Ins. Co. of NY, AAA assessment, No. 17 991 03023 06 (Thomas J. McCorry, Arbitrator) (Award dated 8/07/06).

This arbitration had previously been stayed, pursuant to a petition by the insurer. The stay had been sought on the grounds that because the claimant was a livery cab driver who was working at the time of the accident, workers' compensation should be the primary source of first party benefits.

In February 2006, the Supreme Court of Nassau County (Brandwein, j) had held that, because the Workers' Compensation Board had previously issued a ruling that Abdelhaq was not required to carry workers' compensation insurance due to the fact that he was self-employed and that he was therefore ineligible for comp benefits, that Abdelhaq had met the conditions precedent to no-fault coverage. The request for a stay of arbitration was therefore denied by the court.

Now, in this arbitration proceeding, the arbitrator held that "My reading of Judge Brandwein's decision indicates that he has already decided one of the issues that is before me in this arbitration, that is the propriety of the Respondent Global's denial. Judge Brandwein concluded that the Respondent's denial based upon a defense that workers' compensation was primary was inappropriate."

"Since the parties to [the] summary judgment proceeding before Judge Brandwein were the same as in this proceeding and since the issues to be decided were the same, I find that collateral estoppel applies as to that issue."

The applicant was awarded part of his bills (other bills were denied without prejudice based on an issue regarding assignment of benefits).

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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