Allstate Ins. Co. v. Tenn ( 2022 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ALLSTATE INSURANCE COMPANY v.
DONTE TENN ET AL.
(SC 20586)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Kahn, Ecker, and Keller, Js.
Syllabus
The plaintiff insurance company brought the present declaratory judgment
action in the United States District Court for the District of Connecticut,
seeking a determination that it was not obligated to defend and indemnify
the defendant T in connection with a civil action brought against T by
the defendant M. M’s civil action stemmed from an incident in which
he sustained injuries after T assaulted him. After the incident, T entered
a plea of nolo contendere in a separate criminal prosecution to the
charge of first degree assault. The plaintiff filed a motion for summary
judgment in the present action, claiming that T’s plea of nolo contendere
relieved it of its duty to defend and indemnify T in M’s civil action under
a homeowners insurance policy issued by the plaintiff to T’s mother in
light of a criminal acts exclusion in that policy. Thereafter, the District
Court, pursuant to statute (§ 51-199b (d)) and the rules of practice
(§ 82-1), certified to this court the question of whether a plea of nolo
contendere could be used by an insurance company in a declaratory
judgment action to trigger a criminal acts exclusion to coverage. Held
that T’s plea of nolo contendere was inadmissible in the plaintiff’s declar-
atory judgment action to prove the occurrence of a criminal act and,
therefore, could not be used to trigger the criminal acts exclusion of
the homeowners insurance policy: under this state’s common law, as
codified in the Connecticut Code of Evidence (§ 4-8A (a) (2)), a plea of
nolo contendere generally cannot be admitted in a subsequent proceed-
ing to prove the occurrence of criminal act, and the court’s holding in
this case was harmonious with case law from numerous jurisdictions;
moreover, the purpose of the plea of nolo contendere is to facilitate
the efficient disposition of criminal cases by encouraging plea bar-
gaining, such a plea potentially allows the criminal defendant to avoid
the cost of litigating both criminal and civil cases and to consolidate
resources in defense of only the latter, and allowing the use of a nolo
contendere plea as proof of underlying criminal conduct in subsequent
civil litigation would undermine the very essence of such a plea; further-
more, the plaintiff could not prevail on its claim that it should be permit-
ted to use T’s nolo contendere plea to trigger the policy’s criminal acts
exclusion as a matter of public policy insofar as the general rule against
using a such plea could be adequately safeguarded by enforcing the rule
in M’s civil action, and as T should be not be allowed to benefit from his
illegal conduct, this court having concluded that there was no principled
reason to rigorously enforce the restrictions imposed by § 4-8A (a) (2)
against the victim of a crime in a civil case while simultaneously ignoring
that rule for an insurance company in a declaratory judgment action
arising out of the same set of facts, and, although no one should be
allowed to profit from his or her own wrongdoing, the exclusion of T’s
plea in no way precluded the plaintiff from seeking to enforce the policy’s
criminal acts exclusion in its declaratory judgment action by presenting
evidence concerning T’s criminal conduct, other than T’s plea, to estab-
lish the applicability of that exclusion.
(Two justices concurring in part and dissenting
in part in one opinion)
Argued September 8—officially released February 23, 2022*
Procedural History
Action for judgment declaring that the plaintiff had
no duty to defend and indemnify the named defendant
in an action seeking to recover damages for injuries
sustained in an assault, brought to the United States
District Court for the District of Connecticut, where
the court, Arterton, J., denied the plaintiff’s motion for
summary judgment; thereafter, the court, Arterton, J.,
certified a question of law to this court concerning
whether a plea of nolo contendere and the resulting
conviction can be used to trigger a criminal acts exclu-
sion in an insurance policy.
Paige D. Beisner, with whom, on the brief, was
Michele C. Wojcik, for the appellant (plaintiff).
Ronald S. Johnson, for the appellee (named defen-
dant).
Eamon T. Donovan, for the appellee (defendant Tai-
lan Moscaritolo).
Opinion
KAHN, J. The question in this case is whether the
plaintiff, Allstate Insurance Company (Allstate), can use
a plea of nolo contendere entered by the named defen-
dant, Donte Tenn, to trigger a criminal acts exclusion
in a homeowners insurance policy governed by Con-
necticut law. Allstate commenced the present action
against Tenn and another defendant, Tailan Moscari-
tolo, in the United States District Court for the District
of Connecticut, seeking a judgment declaring that it has
no contractual duty either to defend or to indemnify
Tenn in a civil action brought against Tenn by Moscari-
tolo in Connecticut Superior Court. Allstate subse-
quently filed a motion for summary judgment in this
declaratory judgment action, arguing that Tenn’s plea
of nolo contendere relieved it of its duty both to defend
and to indemnify him as a matter of law. The parties
agreed that a ruling on Allstate’s motion with respect
to indemnification would be premature, and, as a result,
the District Court denied Allstate’s motion with respect
to that issue without prejudice. The only remaining
question, which the District Court, in turn, certified to
this court pursuant to General Statutes § 51-199b (d)
and Practice Book § 82-1, is whether Tenn’s plea of
nolo contendere relieved Allstate of its duty to defend
by triggering the policy’s criminal acts exclusion as a
matter of law. For the reasons that follow, we conclude
that Tenn’s plea of nolo contendere is inadmissible to
prove the occurrence of a criminal act and, therefore,
cannot be used to trigger the policy’s criminal acts
exclusion.
The following undisputed facts and procedural his-
tory, which relate to three distinct judicial proceedings,
are relevant to our consideration of the District Court’s
certified question. Those three proceedings are (1) the
criminal case charging Tenn with an assault on Moscari-
tolo; State v. Tenn, Superior Court, judicial district of
Middlesex, Docket No. CR-XX-XXXXXXX-T; (2) the civil
action brought by Moscaritolo against Tenn in the Supe-
rior Court; Moscaritolo v. Tenn, Superior Court, judicial
district of Middlesex, Docket No. CV-XX-XXXXXXX-S; and
(3) the present declaratory judgment action filed by
Allstate against Tenn and Moscaritolo in federal court.1
See Allstate Ins. Co. v. Tenn, United States District
Court, Docket No. 3:19-cv-00432 (JBA) (D. Conn. March
18, 2021). For the sake of clarity, we briefly review each
of these three proceedings in turn.
The facts related to the criminal case against Tenn
are straightforward. On October 10, 2016, Moscaritolo
was hit repeatedly with a metal baseball bat while walk-
ing on a public street in the city of Middletown. Tenn
was identified by several witnesses as the perpetrator
of that assault and, a few weeks later, was arrested by
the police. On November 6, 2018, Tenn entered a plea
of nolo contendere to the charge of assault in the first
degree in connection with that incident. At the plea
hearing, the prosecutor summarized the evidence
related to the assault and detailed the agreement the
state had reached with Tenn in exchange for his plea.
During the court’s subsequent canvass, Tenn confirmed
that he had heard the charge against him and the evi-
dence recited by the prosecutor, and stated that he
elected not to contest that charge.2 Prior to the court’s
canvass, the defendant completed, signed and submit-
ted the required Plea of Nolo Contendere Form (JD-
CR-60), which provides:
‘‘I am the defendant in the case named above and:
‘‘I have personally been in the court and have been
advised of my rights;
‘‘I have had the complaint in this case read to me or
gave up my right to have the complaint read to me;
‘‘I do not want to contest the claims of the [s]tate of
Connecticut that are in the complaint; and
‘‘I will not contend with the [s]tate of Connecticut
about the complaint.
‘‘By signing this paper, I plead nolo contendere (no
contest) and put myself on the clemency of the court.’’
During the canvass, the prosecutor informed the
court that there was a pending civil case filed by the
victim, Moscaritolo, against Tenn and his mother’s
insurance company. He further advised the court that
Tenn was cooperating in that civil lawsuit, and, for that
reason, the victim was ‘‘not necessarily seeking much
jail time’’ and that he may be monetarily indemnified
for the injuries he suffered. Ultimately, Tenn received
a sentence of twelve years of imprisonment, execution
suspended after two years, and three years of probation
in connection with this conviction.
Moscaritolo’s separate civil action against Tenn
sought to recover damages for personal injuries resulting
from the same assault.3 That action, which is presently
awaiting trial before the Superior Court, contains four
counts: (1) assault, (2) negligent assault, (3) intentional
infliction of emotional distress, and (4) negligent inflic-
tion of emotional distress. The first and third counts
allege that Moscaritolo’s injuries resulted from Tenn’s
‘‘wilful, wanton, intentional and malicious acts . . . .’’
The second and fourth counts, by contrast, allege that
Tenn acted negligently by swinging the baseball bat
near Moscaritolo wildly and without warning.4 Allstate
is currently providing a legal defense to Tenn in that
civil action subject to a reservation of rights.
Allstate then commenced a third action in District
Court, seeking a judgment declaring that it was not
contractually obligated to defend or to indemnify Tenn
in Moscaritolo’s civil action. Allstate conceded that
Tenn qualified as an ‘‘insured person’’ within the mean-
ing of a homeowners insurance policy purchased by
Tenn’s mother, Stephanie L. Patrick, that was in force
at the time of the assault. (Internal quotation marks
omitted.) It also conceded that the terms of that policy
generally obligated it to pay ‘‘damages which an insured
person becomes legally obligated to pay because of
bodily injury or property damage arising from an occur-
rence . . . .’’ (Emphasis omitted; internal quotation
marks omitted.) Allstate nonetheless alleged, inter alia,5
that it had no duty to defend or to indemnify Tenn
because any coverage for his actions was precluded
under the policy’s criminal acts exclusion. That exclu-
sion provides in relevant part: ‘‘[Allstate does] not cover
bodily injury or property damage intended by, or which
may reasonably be expected to result from the inten-
tional or criminal acts of the insured person. This exclu-
sion applies even if:
‘‘(a) such bodily injury or property damage is of a
different kind or degree than that intended or reason-
ably expected; or
‘‘(b) such bodily injury or property damage is sus-
tained by a different person than intended or reasonably
expected.
‘‘This exclusion applies regardless of whether or not
such insured person is actually charged with, or con-
victed of a crime. . . .’’ (Emphasis omitted.)
In its motion for summary judgment, Allstate claimed
that there were no genuine issues of material fact relat-
ing to the application of the criminal acts exclusion and
that, as a result, it was entitled to a declaratory ruling
barring coverage as a matter of law. In advancing this
argument, Allstate specifically argued that ‘‘Tenn’s plea
of nolo contendere precludes any argument that he
did not commit [a] crime.’’ The District Court reserved
decision on this point of law and subsequently certified
the following question to this court: ‘‘Whether a plea
of nolo contendere and the resulting conviction can be
used to trigger a criminal acts exclusion in an insurance
policy.’’ This court accepted that certified question, and
this proceeding followed.
The applicable standard of review is well established.
‘‘[C]onstruction of a contract of insurance presents a
question of law . . . [that] this court reviews de novo.
. . . The determinative question is the intent of the
parties, that is, what coverage the [insured] expected
to receive and what the [insurer] was to provide, as
disclosed by the provisions of the policy. . . . In evalu-
ating the expectations of the parties, we are mindful
of the principle that provisions in insurance contracts
must be construed as laymen would understand [them]
and not according to the interpretation of sophisticated
underwriters and that the policyholder’s expectations
should be protected as long as they are objectively
reasonable from the layman’s point of view. . . .
[W]hen the words of an insurance contract are, without
violence, susceptible of two [equally responsible] inter-
pretations, that which will sustain the claim and cover
the loss must, in preference, be adopted. . . . [T]his
rule of construction favorable to the insured extends
to exclusion clauses. . . . When construing exclusion
clauses, the language should be construed in favor of
the insured unless it has a high degree of certainty that
the policy language clearly and unambiguously excludes
the claim. . . . While the insured bears the burden of
proving coverage, the insurer bears the burden of prov-
ing that an exclusion to coverage applies.’’ (Internal
quotation marks omitted.) R.T. Vanderbilt Co. v. Hart-
ford Accident & Indemnity Co., 333 Conn. 343, 364–65,
216 A.3d 629 (2019); see also Misiti, LLC v. Travelers
Property Casualty Co. of America, 308 Conn. 146, 154,
61 A.3d 485 (2013).
In this state, the general rule is that a plea of nolo
contendere in a criminal case is inadmissible in a subse-
quent proceeding to prove the occurrence of a criminal
act. See Groton v. United Steelworkers of America, 254
Conn. 35, 51, 757 A.2d 501 (2000) (‘‘under our law a
prior plea of nolo contendere and a conviction based
thereon may not be admitted into evidence in a subse-
quent civil action or administrative proceeding to estab-
lish either an admission of guilt or the fact of criminal
conduct’’); see also Lawrence v. Kozlowski, 171 Conn.
705, 711–12 n.4, 372 A.2d 110 (1976), cert. denied, 431
U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977); Krowka
v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 713,
8 A.2d 5 (1939). Indeed, the operation of this principle
is what makes a plea of nolo contendere unique. See
State v. Martin, 197 Conn. 17, 21 n.7, 495 A.2d 1028(1985) (‘‘[t]he only practical difference is that the plea
of nolo contendere may not be used against the defen-
dant as an admission in a subsequent criminal or civil
case’’), overruled in part on other grounds by State v.
Das, 291 Conn. 356, 968 A.2d 367 (2009); AFSCME,
Council 4, Local 1565 v. Dept. of Correction, 107 Conn.
App. 321, 328 n.7, 945 A.2d 494 (2008) (‘‘A plea of nolo
contendere is a declaration by the accused that he will
not contest the charge. Its inconclusive and ambiguous
nature dictates that it should be given no currency
beyond the particular case in which it was entered.’’),
rev’d on other grounds, 298 Conn. 824, 6 A.3d 1142(2010); State v. Bridgett, 3 Conn. Cir. 206, 208–209, 210
A.2d 182 (1965) (‘‘[t]he only basic characteristic of the
plea of nolo contendere [that] differentiates it from a
guilty plea is that the defendant is not estopped from
denying the facts to which he pleaded nolo contendere
in a subsequent judicial civil proceeding’’); E. Prescott,
Tait’s Handbook of Connecticut Evidence (6th Ed.
2019) § 8.13.5 (c) (2), p. 532 (‘‘A plea of nolo contendere
is not a confession of guilt, but just a plea that the
accused will not contest the issue of guilt and will be
sentenced as a guilty person. . . . [It] is not an admis-
sion of guilt and cannot be used as an admission in a
later proceeding.’’ (Internal quotation marks omitted.));
see also State v. Faraday, 268 Conn. 174, 204–205 and
n.17, 842 A.2d 567 (2004) (concluding that defendant
violated terms of probation imposed following Alford6
plea by failing to admit to crime during course of treat-
ment and noting, in dictum, that plea of nolo conten-
dere, like Alford plea, has ‘‘the same legal effect as a
plea of guilty on all further proceedings within the
indictment’’ but ‘‘may not be used against the defendant
as an admission in a subsequent criminal or civil case’’
(emphasis added; internal quotation marks omitted));
2 B. Holden & J. Daly, Connecticut Evidence (1988)
§ 103f, p. 1030 (‘‘[a] plea of nolo contendere is not admis-
sible as an admission by a party’’).7
This common-law rule was ultimately codified in § 4-
8A (a) of the Connecticut Code of Evidence, which
provides in relevant part: ‘‘Evidence of the following
shall not be admissible in a civil or criminal case against
a person who has entered a plea of guilty or nolo conten-
dere in a criminal case or participated in plea negotia-
tions in such case, whether or not a plea has been
entered . . . (2) a plea of nolo contendere . . . or any
statement made in conjunction with such a plea . . . .’’
This language is similar to both the Federal Rules of
Evidence and codes of evidence in a number of other
states. See, e.g., Fed. R. Evid. 410 (a) (2); Me. R. Evid.
410; N.H. R. Evid. 410; R.I. R. Evid. 410; see also Supreme
Judicial Court Advisory Committee on Massachusetts
Evidence Law, Massachusetts Guide to Evidence (2021)
§ 410, p. 47.
Consistent with our common law and rules of evi-
dence, our rules of practice vest Superior Court judges
with discretion to accept pleas of nolo contendere in
criminal cases. See Practice Book §§ 37-7 and 39-18.
Specifically, Practice Book § 39-18 provides in relevant
part that ‘‘[a] plea of nolo contendere shall be in writing,
shall be signed by the defendant, and, when accepted
by the judicial authority, shall be followed by a finding
of guilty.’’ A plea of nolo contendere allows a defendant
to accept a punishment, often lighter, as if he or she
were guilty, and yet still maintain his or her innocence.
See J. Kuss, Comment, ‘‘Endangered Species: A Plea
for the Preservation of Nolo Contendere in Alaska,’’ 41
Gonz. L. Rev. 539, 561–62 (2006) (‘‘The plea was not an
express admission of guilt, but rather was viewed as ‘a
consent by the defendant that he may be punished as
if he were guilty and a prayer for leniency.’ It was ‘a mere
statement of unwillingness to contest and no more.’ In
fact, the only time that a plea of nolo contendere had
the same effect as a guilty plea was in the criminal case
it which it was entered.’’ (Footnotes omitted.)).
The single, narrow question now before this court is
whether, under Connecticut law, a plea of nolo conten-
dere can be used by an insurance company in a declara-
tory judgment action to prove criminal conduct that
would trigger a contractual exclusion to coverage. The
simple answer to that question under our common law,
as codified in § 4-8A (a) of the Connecticut Code of
Evidence, is that a plea of nolo contendere cannot be
used as proof of criminal conduct.
Although neither the parties nor the question certified
to us by the District Court doubts the wisdom of this
rule, we pause to observe the pragmatic and practical
considerations underlying the plea itself. Its purpose, at
base, is to facilitate the efficient disposition of criminal
cases by encouraging plea bargaining. See Elevators
Mutual Ins. Co. v. J. Patrick O’Flaherty’s, Inc., 125
Ohio St. 3d 362, 365, 928 N.E.2d 685 (2010); see also P.
Healey, Note, ‘‘The Nature and Consequences of the
Plea of Nolo Contendere,’’ 33 Neb. L. Rev. 428, 433–34
(1954); 21 Am. Jur. 2d 797–98, Criminal Law § 655
(2016). It provides criminal defendants with a means
to resolve the criminal case against them while avoiding
the potentially harsher penalties occasioned when a
defendant proceeds to trial. See J. Kuss, supra, 41 Gonz.
L. Rev. 560 (‘‘a criminal defendant may just find it prefer-
able to accept a light punishment offered by the prose-
cution in exchange for a nolo contendere plea, rather
than face far worse consequences both in terms of
criminal punishment and civil liability’’ (internal quota-
tion marks omitted)). The financial consequences
include the costs of litigating both criminal and civil
cases, which may lead a defendant who claims inno-
cence to accept a favorable plea in order to consolidate
resources in defense of only the latter. Id. (‘‘It is not
uncommon for a criminal defendant, even if innocent,
to plead nolo contendere—particularly if the over-
whelming strength of the state’s case makes it futile to
go to trial or if the defendant has no basis for pleading
guilty because she simply cannot remember committing
any crime. Still other defendants may use a nolo plea
as a psychological crutch. Whatever the case, there are
a litany of reasons why a criminal defendant may accept
a nolo plea and it should not be casually assumed that
a defendant has sufficient incentive to litigate merely
because she is charged with a serious offense. Even
innocent defendants may have a broad range of motiva-
tions for entering a plea of nolo contendere rather than
contesting a charge.’’ (Footnotes omitted; internal quo-
tation marks omitted.)); see also F. Easterbrook, ‘‘Crim-
inal Procedure as a Market System,’’ 12 J. Legal Stud.
289, 320 (1983).
In addition to affording defendants the opportunity
to enter into a favorable plea agreement without fearing
the financial consequences that would result from an
admission of guilt, ‘‘the nolo plea facilitates the expedi-
tious administration of criminal justice.’’ J. Kuss, supra,
41 Gonz. L. Rev. 564; see also id. (‘‘[t]he inherent utility
of the plea lies in the fact that it encourages plea bar-
gaining and dispenses with lengthy and expensive tri-
als’’ (internal quotation marks omitted)). Allowing the
use of nolo contendere pleas as proof of underlying
criminal conduct in subsequent civil litigation would,
thus, undermine the very essence of the nolo conten-
dere plea itself. See id., 562.
The parties accurately observe that, notwithstanding
this evidentiary limitation and the principles of public
policy underlying it, the use of a nolo contendere plea
does not always shelter criminal defendants from the
collateral consequences triggered by the resulting crimi-
nal conviction. Courts have, for example, found that a
conviction of operating a vehicle under the influence
following a plea of nolo contendere can cause an admin-
istrative suspension of a Connecticut driver’s license.
See, e.g., Kostrzewski v. Commissioner of Motor Vehi-
cles, 52 Conn. App. 326, 333–35, 727 A.2d 233, cert.
denied, 249 Conn. 910, 733 A.2d 227 (1999). Similarly,
a conviction of a drug related felony following a plea
of nolo contendere can lead to the suspension of a
physician’s certificate of registration to distribute a con-
trolled substance under the federal Controlled Sub-
stances Act, 21 U.S.C. § 801 et seq. See, e.g., Sokoloff
v. Saxbe, 501 F.2d 571, 574–75 (2d Cir. 1974). Still other
examples can be listed. See, e.g., annot., ‘‘Plea of Nolo
Contendere or Non Vult Contendere,’’ 152 A.L.R. 253,
290 (1944) (‘‘Is an individual who has entered a plea of
nolo contendere in one proceeding a multi-offender
after a subsequent conviction in another proceeding?
The answer obviously is yes . . . .’’).8 Recognizing the
unique nature of pleas of nolo contendere, our legisla-
ture has expressly permitted, when deemed appro-
priate, the existence of a conviction resulting from that
plea to have collateral consequences; see, e.g., General
Statutes § 36a-489 (a) (conviction following plea of nolo
contendere may preclude issuance of mortgage broker
license); and has compelled certain procedures govern-
ing its use. See, e.g., General Statutes § 54-1j (requiring
advisement relating to immigration and naturalization
consequences resulting from plea of nolo contendere).
The plea of nolo contendere, thus, does not act as an
absolute privilege prohibiting all collateral conse-
quences arising from the resulting criminal conviction.
See Sokoloff v. Saxbe, supra, 574 (‘‘[when] . . . a stat-
ute (or judicial rule) attaches legal consequences to the
fact of a conviction, the majority of courts have held
that there is no valid distinction between a conviction
upon a plea of nolo contendere and a conviction after
a guilty plea or trial’’).9
The present case does not, however, require us to
engage in a lengthy or detailed discussion of the permis-
sible collateral impacts of convictions resulting from
pleas of nolo contendere under Connecticut law
because, quite simply, the contractual exclusion at issue
does not turn on the existence of a criminal conviction.
To the contrary, the policy expressly states that this
exclusion ‘‘applies regardless of whether or not such
insured person is actually charged with, or convicted
of a crime.’’10 (Emphasis altered.) This plain and unam-
biguous language makes either the existence or absence
of a criminal conviction contractually irrelevant.11 The
provision, instead, is triggered by the commission of
the ‘‘intentional or criminal acts of [an] insured person.’’
(Emphasis omitted.) Tenn’s plea of nolo contendere is
inadmissible as proof of criminal acts under § 4-8A (a)
of the Connecticut Code of Evidence and our case law.12
See Lawrence v. Kozlowski, supra, 171 Conn. 711–13
(proof of nolo contendere plea and resulting conviction
were inadmissible to support factual finding of criminal
conduct).
This result is harmonious with case law from numer-
ous other jurisdictions. See, e.g., Safeco Ins. Co. of Illi-
nois v. Gasiorowski, Docket No. 20-3877, 2021 WL
2853255, *3 (E.D. Pa. July 7, 2021) (insured’s plea of
nolo contendere did not trigger criminal acts exclusion
in homeowners insurance policy); Lichon v. American
Universal Ins. Co., 435 Mich. 408, 414–15, 459 N.W.2d
288 (1990) (plea of nolo contendere and resulting con-
viction were inadmissible in subsequent civil litigation
to trigger insurance contract’s antifraud exclusionary
clause); Safeco Ins. Co. of America v. Liss, 303 Mont.
519, 530–32, 16 P.3d 399 (2000) (previous nolo conten-
dere plea to crime of assault did not preclude insured
from contesting insurer’s assertion that incident fell
within policy’s criminal acts exclusion); Elevators
Mutual Ins. Co. v. J. Patrick O’Flaherty’s, Inc., supra,
125 Ohio St. 3d 367 (evidence of insured’s no contest
pleas and subsequent convictions for arson and insur-
ance fraud was inadmissible in civil action to trigger
criminal acts exclusion); Korsak v. Prudential Prop-
erty & Casualty Ins. Co., 441 A.2d 832, 834 (R.I. 1982)
(rejecting argument that insured’s plea of nolo conten-
dere entitled insurer to summary judgment); see also
Hopps v. Utica Mutual Ins. Co., 127 N.H. 508, 511, 506
A.2d 294 (1985) (Souter, J.) (‘‘a plea of nolo contendere
in an earlier criminal prosecution will raise no estoppel,
since that plea neither controverts nor confesses the
facts [on] which the conviction must rest’’).
Cases cited by Allstate reaching the opposite result
are distinguishable. Various decisions from the state of
California; see, e.g., 20th Century Ins. Co. v. Schurtz,
92 Cal. App. 4th 1188, 112 Cal. Rptr. 2d 547 (2001);
Century-National Ins. Co. v. Glenn, 86 Cal. App. 4th
1392, 104 Cal. Rptr. 2d 73 (2001); are inapposite because
those cases involved the commission of felonies and
the legislature of that state has, by statute, provided
that a plea of nolo contendere to a felony ‘‘shall be the
same as that of a plea of guilty for all purposes.’’ Cal.
Penal Code § 1016 (Deering 2008). An unpublished deci-
sion from Kentucky; Eberle v. Nationwide Mutual Ins.
Co., Docket No. 2013-CA-000898-MR, 2016 WL 2609311(Ky. App. May 6, 2016), review denied, Kentucky
Supreme Court (September 15, 2016); is also unpersua-
sive because that case involved a plea entered pursuant
to North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct.
160, 27 L. Ed. 2d 162 (1970). Although the applicable
rule of evidence in that state; see Ky. R. Evid. 410; was
amended in 2007 to allow for the admission of Alford
pleas in subsequent cases, that rule continues to pre-
clude the admission of nolo contendere pleas. Eberle
v. Nationwide Mutual Ins. Co., supra, *7.13
Allstate contends that it should be permitted to use
Tenn’s plea of nolo contendere to trigger the policy’s
criminal acts exclusion as a matter of public policy.14
Specifically, Allstate argues that (1) the general rule
against using pleas of nolo contendere can be ade-
quately safeguarded by simply enforcing that rule in
Moscaritolo’s civil action before the Superior Court,
and (2) excluding proof of Tenn’s nolo contendere plea
will allow him to benefit from his own illegal conduct.
We disagree on both points. First, we see no princi-
pled reason to rigorously enforce the restrictions imposed
by § 4-8A (a) of the Connecticut Code of Evidence on
the victim of a crime in a tort case while simultaneously
ignoring that rule for a corporation in a declaratory
judgment action arising out of the very same set of
facts. The continued, uniform application of that rule
ensures that the prospect of civil liability does not con-
trol the course of related criminal proceedings. Second,
although we wholeheartedly endorse the well estab-
lished legal maxim that no one should be allowed to
profit from his or her own wrongdoing, the exclusion
of Tenn’s plea of nolo contendere in no way precludes
Allstate from vindicating that principle by seeking to
enforce the criminal acts exclusion on the basis of the
evidence that led to Tenn’s prosecution and conviction.
Indeed, Allstate is no less able to enforce the exception
in this case than it would be in a case in which the
state declined to pursue a criminal prosecution of the
insured party in the first instance.
Of course, neither the District Court’s denial of sum-
mary judgment on the duty to defend nor the decision
that this court reaches today will mark an end to All-
state’s ability to seek further relief from liability. Allstate
may well still be able to marshal other evidence to
establish the applicability of the criminal acts exclusion
in a subsequent motion for summary judgment or other-
wise establish the same point at trial. For the reasons
stated previously in this opinion, however, Tenn’s plea
of nolo contendere cannot be used by Allstate to satisfy
that burden.
The answer to certified question is: No.
No costs shall be taxed in this court to either party.
In this opinion ROBINSON, C. J., and MULLINS,
ECKER and KELLER, Js., concurred.
* February 23, 2022, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Records of these proceedings before the Superior Court are a proper
subject of judicial notice. See, e.g., Shirley P. v. Norman P., 329 Conn. 648,
660, 189 A.3d 89 (2018); Karp v. Urban Redevelopment Commission, 162
Conn. 525, 527–28, 294 A.2d 633 (1972).
2
The relevant portions of the canvass conducted by the court, Keegan,
J., include the following:
‘‘The Court: Now, is this going to be a straight guilty plea, nolo?
‘‘[Defense Counsel]: It’s nolo. I filed here, Your Honor.’’
After confirming the terms of the agreement with Tenn, the court asked
the clerk to put Tenn to plea:
‘‘The Clerk: Donte Tenn, in Docket Number CR-XX-XXXXXXX, to the charge
of assault in the first degree, on or about October 10, 2016, in violation of
Connecticut General Statutes § 53a-59, how do you plead?
‘‘[Tenn]: No contest.’’
After confirming with the clerk that the nolo contendere plea form typi-
cally completed was in proper form, the court asked the prosecutor to
summarize the factual basis of the plea. The court went on to conduct a
full canvass of Tenn to ensure that his decision not to contest the charges
was, indeed, voluntary. Following the canvass, the court concluded: ‘‘[The]
court will accept the plea [and] find it knowingly and voluntarily made with
the assistance of competent counsel. There is a factual basis, so the plea
of nolo contendere is accepted, and a finding of guilty may enter.’’
3
Moscaritolo alleged that the assault caused traumatic brain injuries, skull
fractures, an intracranial hemorrhage, an epidural hematoma, a left distal
tibial shaft fracture, a concussion, posttraumatic stress disorder, and head-
aches.
4
We note that, in some jurisdictions, creative pleading alone may not
always suffice to avoid an award of summary judgment in favor of an insurer.
See, e.g., United National Ins. Co. v. Tunnel, Inc., 988 F.2d 351, 354–55 (2d
Cir. 1993) (The court concluded that, under New York law, an insurance
policy exclusion barred coverage for injuries resulting from an assault by
a nightclub bouncer, notwithstanding the fact that the underlying pleading
sounded in negligence, stating: ‘‘On a motion for summary judgment the
court must pierce through the pleadings and their adroit craftsmanship to
get at the substance of the claim. . . . [I]t is plain that [the victim] is alleging
that the bouncer intentionally struck him. And that makes it a claim for
battery—not covered by the insurance policy.’’); see also E. Pryor, ‘‘The
Stories We Tell: Intentional Harm and the Quest for Insurance Funding,’’
75 Tex. L. Rev. 1721, 1728, 1735 n.45 (1997) (noting that ‘‘[m]erely adding
an allegation of negligence will not necessarily create a duty to defend’’
and that, in some cases, ‘‘the intentional nature of the harm may be so
overwhelming that it resists reshaping, or the physical evidence may be
flatly inconsistent with the plaintiff’s effort to characterize the injury as
negligently inflicted’’).
5
Allstate also alleged that the assault was intentional and, therefore, did
not qualify as an ‘‘occurrence’’ and that Tenn had failed to provide it with
adequate notice. (Internal quotation marks omitted.) Because the question
certified by the District Court relates solely to the impact of Tenn’s plea of
nolo contendere on the policy’s criminal acts exclusion, no further discussion
of these additional claims is necessary.
6
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
7
The use of a plea of nolo contendere, thus, in no way limits a trial court’s
ability to impose forms of financial punishment, such as restitution, in the
context of the criminal action in which the plea is entered. See, e.g., State
v. Woodtke, 130 Conn. App. 734, 737–38, 25 A.3d 699 (2011); State v. Daley,
81 Conn. App. 641, 643 n.2, 841 A.2d 243, cert. denied, 269 Conn. 910, 852
A.2d 740 (2004); State v. Klinger, 50 Conn. App. 216, 217–18, 718 A.2d 446(1998); cf. Fed. R. Crim. P. 11 (b) (1) (‘‘[b]efore the court accepts a plea of
. . . nolo contendere . . . the court must inform the defendant of . . . (K)
the court’s authority to order restitution’’); see also, e.g., Baugh v. State,
635 S.W.3d 9, 11 (Ark. App. 2021); People v. Roddy, 498 P.3d 136, 139
(Colo. 2021).
8
Although a plea of nolo contendere can also be used by the state to
establish a violation of probation; see State v. Daniels, 248 Conn. 64, 73,
726 A.2d 520 (1999), overruled in part on other grounds by State v. Singleton,
274 Conn. 426, 876 A.2d 1 (2005); such a practice is not properly characterized
as a policy based exception to the rule set forth in § 4-8A (a) of the Connecti-
cut Code of Evidence. The admissibility of the plea in that particular context
results, instead, from the inapplicability of the Code of Evidence to probation
matters. Conn. Code Evid. § 1-1 (d) (‘‘[t]he [c]ode, other than with respect
to privileges, does not apply in proceedings such as . . . (4) [p]roceedings
involving probation’’).
9
Our use of this same quotation from Sokoloff in Groton v. United Steel-
workers of America, supra, 254 Conn. 51 n.13, should not be read to indicate
any specific disagreement with the legal reasoning of the United States
Court of Appeals for the Second Circuit. Our remark merely recognized, as
we do again today, that the collateral impacts of the plea are not always
the subject of unanimous agreement among courts.
10
Criminal acts exclusions in other insurance policies have occasionally
been drafted to turn explicitly on the existence of a criminal conviction,
regardless of how that conviction was obtained. See Sosinski v. Unum Life
Ins. Co. of America, 15 F. Supp. 3d 723, 727, 732 (E.D. Mich. 2014) (conclud-
ing that exclusion in long-term disability insurance plan precluding coverage
for ‘‘ ‘disabilities caused by, contributed to by, or resulting from’ the ‘commis-
sion of a crime for which you have been convicted’ ’’ was triggered by
conviction resulting from insured’s plea of nolo contendere); Key v. Dept.
of Administrative Services, 340 Ga. App. 534, 536, 798 S.E.2d 37 (2017)
(referring to contractual provision excluding coverage for ‘‘ ‘any dishonest,
fraudulent or criminal act or omission of any [c]overed [p]arty which forms
the basis of a criminal conviction, whether by verdict, plea of guilty or plea
of nolo contendere’ ’’).
11
Even if the language of the policy merely rendered the point ambiguous,
our rules of construction would still compel us to adopt the reading favoring
coverage. See R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co.,
supra, 333 Conn. 365 (‘‘the language [of exclusion clauses] should be con-
strued in favor of the insured unless it has a high degree of certainty that
the policy language clearly and unambiguously excludes the claim’’ (internal
quotation marks omitted)).
12
Although this court’s precedent has addressed the inadmissibility of
nolo contendere pleas to prove the occurrence of a criminal act in civil
actions for damages; see, e.g., Krowka v. Colt Patent Fire Arm Mfg. Co.,
supra, 125 Conn. 713–14; and certain administrative appeals; see, e.g., Law-
rence v. Kozlowski, supra, 171 Conn. 711–13; we have not yet addressed
the application of that rule to a criminal acts exclusion in an insurance
policy. Superior Court decisions confronted with this particular question
have taken divergent approaches. Compare Allstate Ins. Co. v. Simansky,
45 Conn. Supp. 623, 630, 738 A.2d 231 (1998) (concluding that nolo conten-
dere plea triggered criminal acts exclusion), with Allstate Ins. Co. v. Linarte,
Superior Court, judicial district of New Britain, Docket No. CV-XX-XXXXXXX-
S (May 24, 2007) (43 Conn. L. Rptr. 664, 669) (declining to consider defen-
dant’s plea of nolo contendere in determining whether criminal acts exclu-
sions applied). To the extent that the reasoning of Simansky is inconsistent
with the reasoning of this decision, it is hereby overruled.
13
We likewise reject Allstate’s reliance on Auto Club Group Ins. Co. v.
Booth, 289 Mich. App. 606, 797 N.W.2d 695 (2010). Approximately one year
after the Michigan Supreme Court’s decision in Lichon, rule 410 of the
Michigan Code of Evidence was formally amended to allow use of nolo
contendere pleas ‘‘to support a defense against a claim asserted by the
person who entered the plea . . . .’’ Mich. R. Evid. 410 (2); see Akyan v.
Auto Club Ins. Assn., 207 Mich. App. 92, 98, 523 N.W.2d 838 (1994), appeal
denied, 450 Mich. 939, 548 N.W.2d 626 (1995). Although that state’s intermedi-
ate appellate court initially wrestled with the question of whether this lan-
guage was broad enough to encompass a ‘‘claim’’ made by an insured;
(internal quotation marks omitted) Home-Owners Ins. Co. v. Bonnville,
2006 WL 1566681, *6 (Mich. App.) (Bandstra, J., concurring in part and
dissenting in part), appeal denied, 477 Mich. 953, 723 N.W.2d 900 (2006);
that court now appears to have implicitly answered the question in the
affirmative. See Auto Club Ins. Assn. v. Andrzejewski, 292 Mich. App. 565,
571, 808 N.W.2d 537 (2011); Auto Club Group Ins. Co. v. Booth, supra, 615.
Because § 4-8A of the Connecticut Code of Evidence more closely resembles
the text of the rule examined by the court in Lichon, we continue to view
the reasoning of that decision to be most persuasive.
14
Allstate asserts, and we agree, that this court possesses an inherent
authority to amend the rules of evidence on a case-by-case basis. See State
v. DeJesus, 288 Conn. 418, 439, 953 A.2d 45 (2008); see also State v. Gore,
342 Conn. 129, 133, A.3d (2022).