Eastern District of Pennsylvania Deems Nolo Contendere Plea Inadmissible Against Possible Plaintiff
Federal Rule of Evidence 410(a)(2) provides that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:….
a nolo contendere plea.
As I noted in my article, The Best Offense is a Good Defense: Why Defendants’ Nolo Contendere Pleas Should Be Inadmissible Against Them When They Become Civil Plaintiffs, however, there is a split among courts over whether a nolo contendere plea by a criminal defendant is admissible against him if he later becomes a civil plaintiff. The classic example I give in the article is a defendant who pleads nolo contendere to arson and then brings a civil action against his insurance company after it fails to pay on his police for fire damage.
In Safeco Insurance Company of Illinois, et al. v. Nikolai Gasiorowski, et al., 2021 WL 2853255 (E.D.Pa. 2021), the United States District Court for the Eastern District of Pennsylvania dealt with an insurance company trying to front end such a situation.
In Gasiorowski, Safeco Insurance brought an action
seeking a declaration that it has no duty to defend or indemnify its insured in a personal injury case pending in state court in Pennsylvania. The underlying lawsuit arose out of a physical altercation between Nikolai Gasiorowski, the insured, and Ilan Avizohar, an individual recreationally using a PECO property that Gasiorowski was licensed to use. Avizohar allege[d] that, on April 28, 2018, Gasiorowski “menacingly approached” Avizohar as he led a horseback ride through the PECO property, pulled Avizohar off his horse, pinned him down, and struck him in the face. Gasiorowski was criminally charged and pled nolo contendere to simple assault, harassment, and false imprisonment.
Safeco, the provider of Defendant Gasiorowski homeowner’s insurance policy, [then] move[d] for summary judgment, arguing that a criminal acts exclusion operates to bar coverage for the underlying claim.
In denying summary judgment, the court held that
Gasiorowski’s nolo contendere plea is inadmissible in this matter and cannot establish a violation of criminal law. At the summary judgment stage, the moving party must support its motion with evidence that would be capable of admission at trial….Federal Rule of Evidence 410 provides that a nolo contendere plea is not admissible in a subsequent civil or criminal case against the defendant who made the plea….Substantively, under Pennsylvania law, a defendant that pleads nolo contendere does not admit guilt or having committed the alleged acts…Pennsylvania courts have held that a plea of nolo contendere cannot be “used against the defendant as an admission in any civil suit for the same act.”
-CM