NO-FAULT – INTOXICATION EXCLUSION – CERTIFIED TOXICOLOGY REPORT
Westchester Med. Ctr. a/a/o Michael Forthmuller v. Progressive Cas. Ins. Co.
(2nd Dept., decided 5/27/2008)
It rarely happens, so when it does, especially in a coverage case, it's worth taking notice. What's that? An appellate court granting reargument of a decided appeal AND vacating its earlier decision for an amended one.
That's what happened in this case. In its original decision issued on December 11, 2007, the Second Department held that the lower court should not have conditionally granted Progressive's cross motion for summary judgment pending receipt of a certified toxicology report from the first hospital to which plaintiff's assignor had been taken following his one-car crash into a telephone pole because "[e]ven if the subject lab results were contained in certified hospital records, the defendant failed to lay a proper foundation for the admission of this evidence. Absent a proper foundation, certified laboratory results would be insufficient to make a prima facie showing that Forthmuller was intoxicated at the time of the accident[.]"
As the commenter to Dave Gottlieb's No-Fault Paradise posting on this case indicates, the Second Department's original decision was "problematic" to the defense bar. To "lay a proper foundation" for the admission of hospital toxicology records would require both chain of custody witnesses as well as expert testimony.
But that holding remained "on the books" only for five and a half months. Last week, the Second Department reissued an amended decision which, while identical in many respects to the original decision, states:
A blood alcohol test result, as set forth in a certified hospital record, constitutes prima facie evidence of the test result pursuant to CPLR 4518(c) (citations omitted). Thus, the blood alcohol test results contained in a certified hospital record from Sound Shore would be sufficient to make a prima facie showing that Forthmuller was intoxicated at the time of the accident[.]Therefore, under this ruling, a certified hospital record containing a blood alcohol test result in excess of legal limits should be sufficient to make a prima facie showing of the assignor's intoxication at the time of an accident. But that's only half of the equation. An insurer that has denied no-fault benefits based on the mandatory PIP endorsement's intoxication exclusion must also prove that the assignor's intoxication was the proximate cause of the accident, the issue central to the Second Department's other decision by the same case name on May 27th.