O'Leary Successfully Defends Transportation Insurance Company
in Wrongful Death Action
Roseland, NJ, December 17, 2007
–
Thomas O’Leary, a newly-appointed partner, recently
prevailed in a wrongful death case brought against
Transportation Insurance Company (“TIC”), a subsidiary of
the seventh largest commercial insurer in the United
States. The case was decided after six long years of
litigation.
In Basil v.
Wolf, ___ N.J. ____, 2007 WL 4302777 (N.J.), the Estate of John
Basil brought a wrongful death action against TIC claiming that
the insurer was liable for the alleged medical malpractice of a
physician in failing to diagnose a malignant tumor during an
independent medical examination of an injured worker.
The
physician, who did not maintain any medical malpractice
insurance coverage, had been engaged by TIC to perform an
independent medical examination of the injured worker in
connection with a worker’s compensation claim. Basil's Estate
sought to hold TIC liable for the alleged malpractice of the
physician, claiming that the insurer’s pre-authorization
requirements amounted to the direct provision of medical care.
If accepted, this position would have vastly extended vicarious
liability for medical malpractice to insurance companies.
In November
2002, at the close of discovery and on the eve of trial, the
trial court granted Connell Foley’s motion for summary judgment
dismissing all claims against TIC with prejudice.
On December
11, 2007, the New Jersey Supreme Court issued an opinion
affirming the dismissal of the claims against TIC holding that
the insurer was entitled to statutory immunity under New
Jersey’s Workers’ Compensation Act. The Court held that “it is
well settled in this State that there is no direct action
available to an injured employee against the employer, or
against the employer’s insurer when the insurer takes no action
beyond that which is required under the Act and the carrier’s
insurance policy … Exceptions to the no-direction action rule
are few and narrow.” The Court’s ruling substantially limits
the circumstances upon which a direct action at law can be
maintained against workers’ compensation carriers.
Mr.
O’Leary, the principal Connell Foley litigator on this case, is
a member of the firm’s
Business Litigation and
Construction Law practices. For more
information, please call
Thomas O’Leary at (973) 535-0500 or send an email to
toleary@connellfoley.com.
