Law Offices of Popper & Yatvin
Police Misconduct and
Anatomy of a Police Shooting
Sometimes the road to success in a shooting case is paved with
more than constitutional claims. Clark & McCuff v. City of
Philadelphia, et al. was just such a case. Before it was over we
had litigated in state and federal court (twice each), under theories
of constitutional law, Dram Shop, premises liability, negligence,
insurance coverage and insurance bad faith.
On March 20, 1992, Shirley Clark and the late Douglas McCuff
were accidentally shot by a police officer who was responding to a
shooting in a bar by an intoxicated off-duty police officer. The Civil
Rights claims against the officer and the City were settled in late
1994, along with the claims against the bar where the off-duty
officer started his night of drinking. The case for negligence of the
second bar in padlocking the emergency exit, thereby preventing
Clark and McCuff from escaping the premises when the original
shooting occurred, was remanded to state court.
Insisting that there was no coverage under the assault and battery
exclusion of the bar’s insurance policy, the insurer refused to even
defend, let alone indemnify. By rejecting plaintiffs’ policy limits
settlement proposal, the insurer left the bar open to substantially
greater damages, and itself open to a bad faith suit.
In the Spring of 1998, days before trial in Philadelphia Common
Pleas Court, the insurer filed a declaratory judgment action in
federal court. Because the insurer did not seek a stay, the bench
trial proceeded in Common Pleas Court and verdicts were
rendered for plaintiffs. The Court found that the padlocking of the
emergency exit was a proximate cause of the injuries. The Court
also made a specific factual finding that the injury was the result of
an accidental shooting and not an intentional assault and battery.
This finding was the final nail in the insurer’s coffin.
In January of 1999 the District Court granted our summary
judgment motion and dismissed the declaratory judgment action.
The insurer settled for 65% above the policy limits while the case
was on appeal to the Third Circuit.
Sphere Drake v. 101 Variety, 35 F. Supp. 2d 421 (E.D.Pa. 1999).