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Negligence/Assault & Battery Case /Aiding and Abetting
Traumatic Brain Injury
David Dwork, Esquire – Kevin P. Scanlon, Esquire
The plaintiff suffered catastrophic injuries on April 10, 1999 after he left a “Beirut” party. “Beirut” involves players using a ping pong ball to attempt to land the ball in the opposing players cup, and if the ping pong ball goes into the cup the player must drink the cup of beer. At the party words were exchanged between the plaintiff and three of his friends and the defendants.
The plaintiff and his group left the party, and the defendants and two of their friends left shortly thereafter. There was then an encounter between the two groups out in the street and in the course of the encounter the plaintiff was either struck, pushed or fell, striking his head on the sidewalk. The plaintiff sustained a traumatic brain injury requiring emergency brain surgery. He remained in a coma for approximately five weeks and was later transferred to a rehabilitation facility. He remains physically impaired. At the time that the plaintiff was admitted to the emergency room, he had a blood alcohol level of .31, approximately four times the legal limit.
Plaintiff asserted claims against two defendants, defendant number one who allegedly pushed and/or struck the plaintiff causing him to fall and defendant number two who allegedly was accompanying defendant number one and who was involved in an altercation with one of the plaintiff’s friends. It was alleged that defendant number two aided and abetted defendant number one. At the time both defendants were full time college students. Their parents’ homeowners insurance policies came in and defended the plaintiffs’ claims.
The insurer for defendant one, whose parents resided in Michigan, brought a declaratory judgment action in Michigan seeking a declaration that was no coverage under the intentional tort exclusion. Defendant number one’s homeowners insurer obtained such a declaration of non-coverage which was sustained on appeal. The allegations against defendant number two included claims of negligence and aiding and abetting. Plaintiff settled with the insurers for defendant number two for $475,000. There was a substantial risk that even if plaintiff prevailed at trial against defendant number two, it would be on the basis of claims not covered under the parents’ homeowners policy.
Defendant number two had a primary policy and an excess policy. Plaintiff proposed to settle with the primary insurer and to release the primary insurer and defendant number two personally, but only to the extent that any recovery exceeded the amount of the excess policy. The excess insurer, faced alone with a possible exposure, then agreed to contribute to the settlement although the primary policy limits had not been exhausted. The plaintiff is still proceeding against defendant number one.