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To be LobelledApril 14, 2009

I have always said that to understand no-fault, you need to understand bodily injury law. This is typified through instances where the result of an assigned no-fault case can fatally destroy the personal injury case for the assignor.

This issue I think rears its ugly head most often times in the so-called “causation” scenarios, where the defense to the no-fault claim is that the injuries are not causally related to the underlying motor vehicle accident. The question that arises is what happens to the corresponding personal injury claim of the assignor if the insurance carrier succeeds in proving this defense?

This is when one must understand the term: “to be lobelled”. Here is the case:

Lobel v. Allstate Ins. Co. 269 A.D.2d 502 (2d Dept. 2002).

“The defendant moved to dismiss the cause of action to recover no-fault benefits on the ground that it was barred by a prior arbitration proceeding between the plaintiff’s assignee and the defendant, which resulted in a determination that there was no casual connection between the plaintiff’s lower back condition and the subject automobile accident. The defendant demonstrated that the issue in the **489 arbitration proceeding was identical to and decisive of this cause of action. The plaintiff failed to establish the absence of a full and fair opportunity to litigate the issue in the prior matter”.

I think the bolded words speak for themselves.

Oh yes, what about the IME cut-off that is upheld? How does this impact the assignor’s personal injury case? Barnett v. Ives 265 A.D.2d 865 (4th Dept.1994).

In Barnett, the Appellate Division held that an arbitration award which found that an injured person was not longer injured as a result of the accident, whether phrased as a causation or medical necessity determination, is collateral estoppel to the injured person in a personal injury case. As observed from the facts should you pull the case up, it is potentially catosrophic in terms of proving the two most potent 5102(d) categories: (a) Significant Limitation; and (b) Permanent Consequential. Furthermore, even if you can prove Significant Limitation or 90/180, an adervse arbitration ruling would knock out future damages, which many times is the crux of the BI case. It may also call into question the degree of actual injury, which may limit damages for past pain and suffering and past economic injury.

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