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Vol. 3, Iss. 4
March 5, 2014


Responding To A Reader And Taking Another Look At Lipsky v. State Farm
(Emotional Injury As Bodily Injuy)


In the last issue of Coverage Opinions I addressed the Pennsylvania Supreme Court’s recent (and somewhat under the radar) decision in Lipsky v. State Farm, addressing the all-important question whether emotional injury qualifies as a sufficient injury for purposes of triggering “bodily injury” coverage. Pennsylvania was sorely in need of a high court decision on this issue. The existing Pennsylvania cases were a hodgepodge of federal and state decisions.

The Supreme Court’s decision was that the Justices eligible to vote were equally divided. As a result, the court ruled that, by operation of law, the Superior Court’s decision was affirmed.

Based on this decision, I concluded that “Pennsylvania now has much needed Supreme Court authority on the question whether emotional injury qualifies as a sufficient injury for purposes of triggering ‘bodily injury’ coverage.” In particular, Pennsylvania had now joined the majority of courts nationally that hold that emotional injury, when accompanied by physical manifestation, qualifies as “bodily injury.”

I heard from a Coverage Opinions reader who took issue with my conclusion that Lipsky is now the law in Pennsylvania. He informed me that, in the case of a 3-3 affirmance, the Supreme Court’s decision becomes the law of the case but does not have precedential value and is not binding on other cases.

I know that lawyer who sent me this e-mail and he’s a very smart guy. The analysis he sent me certainly sounded persuasive so I didn’t look into it further. As a smart guy, and one that has been around a long time, I give him every benefit of the doubt that Lipsky is technically not the law in Pennsylvania. But technical and practical are two different things.

It certainly seems likely that the practical effect of Lipsky is that it will be treated as the law in Pennsylvania and not simply the law of the Lipsky case. After all, the existing Pennsylvania cases, on the emotional injury as bodily injury question, were a hodgepodge of federal and state decisions. Second, the Superior Court’s decision, that emotional injury, when accompanied by physical manifestation, qualifies as “bodily injury,” is the majority rule nationally. So it’s not as if the rule adopted by the Superior Court, and affirmed by the Supreme Court in a 3-3 fashion, was some crazy outlier. For these reasons, I suspect that the practical effect of Lipsky is that it will be treated as the law in Pennsylvania. I appreciate being told that there’s more to Lipsky than I realized.

 
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