Heads You Lose Tails I Win! Central NY Personal Injury Lawyer Explains Unfair Rule.

chess.jpgImagine a three-way chess game where two players actually play, while a third sits by watching. Let’s call the guy watching “the watcher” (I’m brilliant!). The watcher is going to play you next. But here’s the thing: If you win the game you are now playing, the watcher will actually play you. But if you lose, then the watcher automatically wins his game against you and you automatically lose. No need to actually play that game. In other words, if you lose against your opponent, you lose against both your opponent and the watcher. But if you win, you win only against your opponent, and have to play the watcher to take a second win. In other words still, a loss makes for two losses, but a win makes for only one win.

Sound fair? Of course not! But those are the rules of the game the Court of Appeals has recently signed off on in Auqui v. Seven Thirty One Limited Partnership. And the player with the one-loss-equals-two-losses dilemma is YOU if you are an injured worker with a comp claim against your employer as well as a “third-party action” (personal injury lawsuit) against someone else.

Here’s how it works: Let’s say in both cases (comp claim and personal injury lawsuit) you are claiming you are disabled. Your workers’ comp hearing comes up before your personal injury trial. If the comp judge finds you NOT disabled, the personal injury lawsuit judge will rule you are automatically NOT disabled for the purposes of the personal injury trial, too. But if the comp judge finds you ARE disabled, you can’t use that ruling in your favor at the personal injury trial. You have to prove that all over again to the jury, who will never learn of the prior comp disability finding.

Believe it or not, this all makes some kind of sense to lawyers, which just goes to show how weird we lawyers are. The concept is called “issue preclusion”, or if you want to get real fancy, “res judicata“. But just because it makes sense doesn’t make it fair. It’s not. (I won’t bother explaining the reasons behind the “res judicata” rule — the explanation would swallow up this blog).

The res judicata rule is applied under some circumstances but not under others. Most outside observers believed that it should not apply in the comp/personal injury lawsuit mix. The Court did not have to apply that rule here. I still don’t understand why they did.

Maybe they just flipped a coin: Heads we lose, tails they win.

Keep safe!

Mike Bersani
Email me at: bersani@michaels-smolak.com I’d love to hear from you!

Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyer Michaels & Smolak, P.C.

1-315-253-3293

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