Lindsey Dostal v. Curtis Strand

2023 WI 6SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1943
COMPLETE TITLE: Lindsey Dostal, Individually and as Special
Administrator of the Estate of Haeven Dostal,
Plaintiff-Appellant-Cross-Respondent-
Petitioner,
v.
Curtis Strand and ABC Insurance Company,
Defendants,
State Farm Fire and Casualty Company,
Intervening-Defendant-Respondent-
Cross-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 399 Wis. 2d 781, 967 N.W.2d 157PDC No: 2021 WI App 79 - Published
OPINION FILED: January 26, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 6, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Barron
JUDGE: James C. Babler
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK
and REBECCA GRASSL BRADLEY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-cross-respondent-petitioner,
there were briefs filed by Michael J. Brose, Mackenzie E.
Campbell, Morgan A. Richie, and Doar, Drill & Skow, S.C., New
Richmond. There was an oral argument by Mackenzie E. Campbell.
For the intervening-defendant-respondent-cross-appellant,
there was a brief filed by William L. Moran, Maya H. Digre, and
HAWS-KM, P.A., St. Paul. There was an oral argument by William
L. Moran.
An amicus curiae brief was filed by Michael J. Cerjak and
Cannon & Dunphy, S.C., Brookfield, for Wisconsin Association for
Justice.
2
2023 WI 6NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1943
(L.C. No. 2019CV217)
STATE OF WISCONSIN : IN SUPREME COURT
Lindsey Dostal, Individually and as Special
Administrator of the Estate of Haeven Dostal,
Plaintiff-Appellant-Cross-Respondent-
Petitioner,
v. FILED
Curtis Strand and ABC Insurance Company,
JAN 26, 2023
Defendants,
Sheila T. Reiff
Clerk of Supreme Court
State Farm Fire and Casualty Company,
Intervening-Defendant-Respondent-
Cross-Appellant.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK
and REBECCA GRASSL BRADLEY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed and
cause remanded.
¶1 ANN WALSH BRADLEY, J. The petitioner, Lindsey Dostal
(Dostal), both individually and as special administrator of the
No. 2020AP1943
estate of Haeven Dostal, seeks review of a court of appeals
decision affirming the circuit court's grant of summary and
declaratory judgment in favor of State Farm.1 The court of
appeals determined that Curtis Strand's conduct did not
constitute an "occurrence" covered by the State Farm policy at
issue because his conviction for second-degree reckless homicide
established that the death was not the result of an accident.
¶2 Dostal contends that Strand's criminal conviction does
not preclude a finding that Haeven's death was the result of an
accident. She further advances that the State Farm policy
provides coverage for her claims against Strand and that neither
the resident relative nor the intentional acts exclusion bars
coverage.
¶3 In contrast, State Farm asserts that issue preclusion
bars relitigation of the issue of whether Haeven's death was the
result of an accident. It argues that Strand's criminal
conviction is dispositive on the issue of available insurance
coverage under Strand's policy, and that there is no coverage
for Dostal's claims. State Farm further contends that the
policy's resident relative and intentional acts exclusions
preclude coverage.
¶4 We conclude that issue preclusion does not bar Dostal
from seeking insurance coverage for her claims against Strand.
The issue of whether Strand's conduct constituted an "accident"
1Dostal v. Strand, 2021 WI App 79, 399 Wis. 2d 781, 967
N.W.2d 157 (affirming order of the circuit court for Barron
County, James C. Babler, Judge).
2
No. 2020AP1943
was not actually litigated in the prior criminal proceeding.
Additionally, we conclude that there are genuine issues of
material fact regarding the application of the resident relative
and intentional acts exclusions such that summary judgment is
inappropriate.
¶5 Accordingly, we reverse the decision of the court of
appeals and remand to the circuit court for further proceedings
consistent with this opinion.
I
¶6 The following facts are undisputed. Additional facts
will be set forth as necessary in our analysis.
¶7 Dostal and Strand were in an on-and-off relationship
for 17 years. Dostal gave birth to Haeven on April 3, 2017, and
Strand was subsequently adjudicated the father.
¶8 On July 11, 2017, Haeven passed away as a result of
head trauma that occurred while she was in Strand's care. Law
enforcement conducted an investigation into Haeven's death.
¶9 As part of the investigation, law enforcement spoke
with Strand multiple times, during which Strand gave
inconsistent accounts of what happened. In a statement given to
police on July 10, 2017, Strand said that Haeven fell off of his
knee and hit the floor as he attempted to burp her. Strand was
interviewed again in November of 2017, at which time he stated
that he was warming a bottle, turned around and hit the kitchen
island, dropping Haeven to the floor. In both versions of
events, Strand put Haeven to bed without seeking medical
attention.
3
No. 2020AP1943
¶10 The State initially charged Strand with first-degree
reckless homicide2 and resisting or obstructing an officer.3
After a jury trial, at which Dostal was a witness, the jury
convicted Strand of second-degree reckless homicide4 and
resisting or obstructing an officer.
¶11 Dostal subsequently brought this civil action for
negligence and wrongful death against Strand. With regard to
the negligence claim, the complaint alleges that Haeven's
"injuries were proximately caused by the negligent acts
of . . . Strand, including but not limited to, negligent
supervision, failing to properly hold or secure Haeven to
prevent her from falling, [and] failing to contact emergency
services in a reasonable manner." As to the wrongful death
claim, Dostal alleged that she "has sustained damages due to the
wrongful death of her daughter, loss of the society and
companionship of her child, and has suffered pecuniary loss and
will continue to suffer those losses into the future."
¶12 Strand tendered the matter to State Farm, his
homeowner's insurer, seeking defense and indemnification. State
Farm moved to intervene, bifurcate liability and coverage
2 Wis. Stat. § 940.02(1) (2017-18).
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
3 Wis. Stat. § 946.41(1).
4 Wis. Stat. § 940.06(1).
4
No. 2020AP1943
proceedings, and stay liability proceedings.5 The circuit court
granted State Farm's motion and went ahead with coverage
proceedings.
¶13 State Farm moved for summary and declaratory judgment,
arguing that its policy did not provide coverage for Dostal's
claims and that it thus had no duty to defend or indemnify
Strand. Specifically, State Farm asserted that there was no
"occurrence" (defined as an "accident") triggering coverage. In
State Farm's view, the fact that Strand was convicted of second-
degree reckless homicide, which required that the jury find that
Strand created an unreasonable and substantial risk of death or
great bodily harm and that he was aware of that risk, precluded
the events at issue "from being labeled a mere 'accident.'"
State Farm additionally argued that even if there were an
"occurrence," coverage remains precluded under a "resident
relative" exclusion and an "intentional acts" exclusion.
¶14 The circuit court agreed with State Farm and granted
its motion for summary and declaratory judgment. It concluded
that "[t]he criminal recklessness in this case requires more
than accidental conduct." With regard to the resident relative
exclusion, the circuit court determined that "[t]here are
5 See Newhouse by Skow v. Citizens Sec. Mut. Ins. Co., 176
Wis. 2d 824, 836, 501 N.W.2d 1 (1993) (explaining that "the
proper procedure for an insurance company to follow when
coverage is disputed is to request a bifurcated trial on the
issues of coverage and liability and move to stay any
proceedings on liability until the issue of coverage is
resolved"); Elliott v. Donahue, 169 Wis. 2d 310, 318, 485
N.W.2d 403 (1992).
5
No. 2020AP1943
disputed material facts as to whether or not Haeven was a
resident under the State Farm policy." Finally, as to the
intentional acts exclusion, the circuit court concluded that
this exclusion "also operates to bar coverage in this case
because Strand's intent can be inferred as a matter of law."
¶15 Dostal appealed the circuit court's grant of summary
judgment and declaratory judgment in favor of State Farm.
Additionally, State Farm cross-appealed from the portion of the
circuit court's decision finding disputed issues of material
fact as to the application of the resident relative exclusion.
¶16 The court of appeals affirmed the circuit court's
decision in a published opinion. Dostal v. Strand, 2021 WI App
79, 399 Wis. 2d 781, 967 N.W.2d 157. Its analysis mirrored that
of the circuit court. Namely, the court of appeals determined:
Under the undisputed facts of this case, we conclude
that the Policy did not provide coverage for Dostal's
claims. A jury in a criminal trial rejected the
argument that Strand's actions were accidental and
convicted him of second-degree reckless homicide. In
doing so, the jury necessarily found, beyond a
reasonable doubt, that Strand was aware that his
conduct created an unreasonable and substantial risk
of harm to Haeven such that her death did not result
from an accident. Accordingly, Strand's conduct did
not constitute an occurrence under the Policy.
Because we conclude there was no occurrence, the
Policy provides no coverage for Dostal's claim against
Strand.
Id., ¶3. Because the court of appeals concluded that there was
no occurrence, it declined to address the resident relative and
intentional acts exclusions. Id., ¶3 n.1. Dostal petitioned
for this court's review.
6
No. 2020AP1943
II
¶17 We are called upon to review the court of appeals'
determination that the circuit court properly granted summary
and declaratory judgment to State Farm. We review a summary
judgment determination independently of the determinations
rendered by the circuit court and court of appeals, applying the
same methodology as the circuit court. MacLeish v. Boardman &
Clark LLP, 2019 WI 31, ¶22, 386 Wis. 2d 50, 924 N.W.2d 799.
Summary judgment is appropriate where there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. Id.¶18 The grant or denial of declaratory judgment is
addressed to the circuit court's discretion, but when the
exercise of such discretion turns on a question of law, we
likewise review the question independently of the circuit court
and court of appeals' determinations. Olson v. Farrar, 2012 WI
3, ¶24, 338 Wis. 2d 215, 809 N.W.2d 1. Where the circuit
court's grant of declaratory judgment turns upon its
interpretation of an insurance policy, a question of law is
presented. Id.¶19 In our review, we examine whether issue preclusion
applies. "Whether issue preclusion is a potential limit on
litigation in an individual case is a question of law, on which
we give no deference to the circuit court's decision." Mrozek
v. Intra Fin. Corp., 2005 WI 73, ¶15, 281 Wis. 2d 448, 699
N.W.2d 54.
7
No. 2020AP1943
¶20 Finally, our review requires us to interpret the State
Farm insurance policy at issue. The interpretation of an
insurance policy presents a question of law we review without
deference to the circuit court or court of appeals. Shugarts v.
Mohr, 2018 WI 27, ¶18, 380 Wis. 2d 512, 909 N.W.2d 402. "A
policy's terms are interpreted as they would be understood from
the perspective of a reasonable person in the position of the
insured." Id., ¶20.
III
¶21 We address first the doctrine of issue preclusion and
whether it serves as a bar to Dostal's claim for insurance
coverage in this case.6 Subsequently, we discuss the policy's
resident relative and intentional acts exclusions.
A
¶22 "The doctrine of issue preclusion, formerly known as
collateral estoppel, is designed to limit the relitigation of
issues that have been actually litigated in a previous action."
As an initial matter, State Farm asserts that Dostal
6
forfeited any argument that issue preclusion applies because
such an argument was not raised in the circuit court or court of
appeals. However, even if the circuit court and court of
appeals did not use the words "issue preclusion," their
decisions clearly were grounded in the doctrine. State Farm
highlights the focus of its argument as "whether insurance
coverage is available under the terms of the Policy for
Strand's . . . reckless acts when those very same acts were
fully litigated and form the basis of his criminal conviction."
In other words, this is an argument that previous litigation of
the issue precludes the present claim, or that "issue
preclusion" applies. As Dostal responds, "[t]he preclusive
effect of Strand's conviction has always been and remains
central to this dispute." The issue is therefore not forfeited.
8
No. 2020AP1943
Aldrich v. LIRC, 2012 WI 53, ¶88, 341 Wis. 2d 36, 814
N.W.2d 433. A party asserting issue preclusion has the burden
to establish that it should be applied. Id.¶23 Our analysis of an issue preclusion question proceeds
in two steps. We determine (1) whether issue preclusion can, as
a matter of law, be applied, and if so, (2) whether the
application of issue preclusion would be fundamentally fair.7
Id., ¶89. If the analysis fails on the first prong, there is no
need to address the second. Paige K.B. ex rel. Peterson v.
Steven G.B., 226 Wis. 2d 210, 224-25, 594 Wis. 2d 370 (1999).
7"The case law has set forth five factors, which are not
exclusive or dispositive, to aid a circuit court in determining
whether application of issue preclusion is fundamentally fair."
Est. of Rille v. Physicians Ins. Co., 2007 WI 36, ¶38, 300
Wis. 2d 1, 728 N.W.2d 693. Those factors are as follows:
Courts may consider some or all of the following
factors to protect the rights of all parties to a full
and fair adjudication of all issues involved in the
action: (1) could the party against whom preclusion
is sought, as a matter of law, have obtained review of
the judgment; (2) is the question one of law that
involves two distinct claims or intervening contextual
shifts in the law; (3) do significant differences in
the quality or extensiveness of proceedings between
the two courts warrant relitigation of the issue; (4)
have the burdens of persuasion shifted such that the
party seeking preclusion had a lower burden of
persuasion in the first trial than in the second; or
(5) are matters of public policy and individual
circumstances involved that would render the
application of [issue preclusion] to be fundamentally
unfair, including inadequate opportunity or incentive
to obtain a full and fair adjudication in the initial
action?
Michelle T. by Sumpter v. Crozier, 173 Wis. 2d 681, 688-89, 495
N.W.2d 327 (1993).
9
No. 2020AP1943
¶24 In the first step of the analysis, we must determine
whether the issue or fact was actually litigated and determined
in the prior proceeding by a valid judgment in a previous action
and whether the determination was essential to the judgment.
Est. of Rille v. Physicians Ins. Co., 2007 WI 36, ¶37, 300
Wis. 2d 1, 728 N.W.2d 693. "An issue is 'actually litigated'
when it is 'properly raised, by the pleadings or otherwise, and
is submitted for determination, and is determined.'" Randall v.
Felt (In re Est. of Felt), 2002 WI App 157, ¶9, 256 Wis. 2d 563,
647 N.W.2d 373 (quoting Restatement (Second) of Judgments § 27
cmt. d (1980)). For issue preclusion to bar relitigation, the
issue sought to be precluded must have been actually litigated
previously. Lindas v. Cady, 183 Wis. 2d 547, 559, 515
N.W.2d 458 (1994). This stands in contrast to claim preclusion,
which extends to all claims that either were or could have been
asserted in the previous litigation. Id.¶25 The insurance policy in this case sets forth that
coverage is provided for an "occurrence." An "occurrence," in
turn, is defined under the policy as an "accident," which
results in, as relevant here, "bodily injury." The policy does
not include a definition for "accident." In interpreting this
term, we keep in mind that we read insurance policies from the
perspective of a reasonable person in the position of the
insured. Shugarts, 380 Wis. 2d 512, ¶20. We have previously
described an "accident" as an event "occurring by chance or
arising from unknown or remote causes" and "an event which takes
place without one's foresight or expectation." Am. Fam. Mut.
10
No. 2020AP1943
Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶37, 268 Wis. 2d 16, 673
N.W.2d 65.
¶26 State Farm contends that the issue of Strand's fault
was actually litigated in a prior action, namely the criminal
case against Strand. It asserts that the jury's verdict
convicting Strand of second-degree reckless homicide
conclusively determined that, because Strand's conduct was
reckless, Haeven's death could not have been an "accident" for
purposes of insurance coverage.
¶27 The offense of second-degree reckless homicide is set
forth as follows: "Whoever recklessly causes the death of
another human being is guilty of a Class D felony." Wis. Stat.
§ 940.06(1). In turn, the statutes define criminal
recklessness, as relevant here, to mean "that the actor creates
an unreasonable and substantial risk of death or great bodily
harm to another human being and the actor is aware of that
risk." Wis. Stat. § 939.24(1).
¶28 Accordingly, in a prosecution for second-degree
reckless homicide, the State has the burden to show beyond a
reasonable doubt that two elements were present. See State v.
Neumann, 2013 WI 58, ¶91, 348 Wis. 2d 455, 832 N.W.2d 560. The
relevant jury instruction sets forth those elements as follows:
1. The defendant caused the death of (name of victim).
"Cause" means that the defendant's act was a
substantial factor in producing the death.
2. The defendant caused the death by criminally
reckless conduct.
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No. 2020AP1943
"Criminally reckless conduct" means:
 the conduct created a risk of death or great
bodily harm to another person; and
 the risk of death or great bodily harm was
unreasonable and substantial; and
 the defendant was aware that (his)(her) conduct
created the unreasonable and substantial risk of
death or great bodily harm.
Wis JI——Criminal 1060 (2015).
¶29 We are asked to discern whether being aware of the
risk that something might happen necessarily means that when
that thing happens, it is not an "accident." Dostal asserts
that this question should be answered in the negative. She
contends that none of the elements of second-degree reckless
homicide that the jury found would preclude a determination that
Haeven's death was an accident.
¶30 State Farm, on the other hand, advances that in this
analysis we should focus on the conduct itself and not the
result of the conduct in determining whether conduct was an
accident. In other words, State Farm points the court's
attention to the "injury-causing event" and not the injury. See
Schinner v. Gundrum, 2013 WI 71, ¶66, 349 Wis. 2d 529, 833
N.W.2d 685. Under this theory, even if Haeven's death was
unintentional, Strand's conduct that led to the death was still
not accidental because he was aware of the risk of death, and
that is where our focus should be for purposes of coverage.
12
No. 2020AP1943
¶31 In beginning our analysis of this issue, we observe
that there is no Wisconsin case law directly on point.8 Thus, we
may look to case law of other states for guidance. See Russ ex
rel. Schwartz v. Russ, 2007 WI 83, ¶34 n.9, 302 Wis. 2d 264, 734
N.W.2d 874.
¶32 We find particularly informative two cases in which
there was a conviction for a reckless crime and a later question
of the preclusive effect of that conviction. The first of these
cases is the New York court of appeals'9 decision in Allstate
Insurance Co. v. Zuk, 574 N.E.2d 1035 (N.Y. 1991). In that
case, Zuk was cleaning and loading a shotgun in a hunting lodge
8 The dissent asserts that our analysis begins on the "wrong
foot" because it does not focus on Wisconsin's direct action
statute, Wis. Stat. § 632.24. Dissent, ¶69. The suggested
preeminence of a direct action statute is perplexing because
such focus is ultimately unnecessary.
As the dissent states, pursuant to the direct action
statute "the liability to which the insurer is exposed is
predicated upon the liability of the insured." Kranzush v.
Badger State Mut. Cas. Co., 103 Wis. 2d 56, 75, 307 N.W.2d 256(1981). In other words, Dostal's right to recover from State
Farm depends on Strand's right to indemnification from State
Farm. So the question becomes: when is State Farm required to
indemnify Strand? According to the policy, the answer is: when
there is an occurrence. And when is there an occurrence? When
there is an accident, which as we determine, is an argument that
is not precluded in this case. The direct action statute,
following a more circuitous route, thus leads to an examination
of whether there could be an "accident" here, the very same
question this opinion already addresses. Consequently, it does
not affect our analysis.
9 Following a different naming scheme than the court system
in Wisconsin, the court of appeals in New York is that state's
highest court. See State v. Brownson, 157 Wis. 2d 404, 411, 459
N.W.2d 877 (Ct. App. 1990).
13
No. 2020AP1943
and accidentally shot and killed his friend, Smith. Id. at
1036. Zuk was charged and convicted of second degree
manslaughter. Id. Smith's estate subsequently brought a
wrongful death action against Zuk and Zuk sought defense and
indemnification from Allstate, his homeowner's insurer. Id.
¶33 Allstate argued that Zuk's conviction for second
degree manslaughter established as a matter of law that Zuk
reasonably expected that his acts would cause Smith's death, and
that this finding in the criminal proceeding should be given
preclusive effect in the subsequent civil action. Id. at 1037.
The court rejected Allstate's argument, concluding that "Zuk's
criminal conviction does not collaterally block the civil
litigation of the issue whether Smith's death could 'reasonably
be expected to result' from Zuk's acts. Under this policy
provision, in the factual context of this dispute and procedural
framework, that issue cannot be resolved as a matter of law."
Id. at 1036.
¶34 In arriving at this determination, the court observed
that "Zuk's conviction of second degree manslaughter was
necessarily based on a finding that he recklessly caused Smith's
death." Id. at 1037. It therefore cited the definition of
criminal recklessness under New York law, which is substantially
similar to that under Wisconsin law:
A person acts recklessly, in a criminal context, when
that person is aware of and consciously disregards a
substantial and unjustifiable risk of a result, where
the risk is of such a nature and degree that to
disregard it constitutes a gross deviation from the
standard of conduct of a reasonable person.
14
No. 2020AP1943
Id. at 1037-38.
¶35 But the fact that the jury determined that Zuk was
reckless did not necessarily mean that his conduct was
reasonably to be expected to result in Smith's death as the
policy exclusion's language required: "A person may engage in
behavior that involves a calculated risk without expecting——no
less reasonably——that an accident will occur. Such behavior,
which may be reckless for criminal responsibility purposes, does
not necessarily mean that the actor reasonably expected the
accident to result." Id. at 1038. The Zuk court thus
ultimately determined that "the issue whether Smith's death
could 'reasonably be expected to result' from Zuk's acts was not
necessarily determined in the criminal proceeding and was not
identical to the issues that were determined there." Id.
¶36 Additional guidance comes from the Illinois appellate
court's decision in Metropolitan Property and Casualty Insurance
Co. v. Pittington, 841 N.E.2d 413 (Ill. App. Ct. 2005).10 There,
10The dissent contends that the Illinois appellate court
declined to follow Pittington in Allstate Indemnity Co. v.
Hieber, 24 N.E.3d 139 (Ill. App. Ct. 2014). Dissent, ¶81. But
nothing in the Hieber decision indicates that Pittington is no
longer good law. All the Hieber court determined is that the
facts of that case were more analogous to those in American
Family Mutual Insurance Co. v. Savickas, 739 N.E.2d 445 (Ill.
2000), than to Pittington. Hieber, 24 N.E.3d at 144 ("We
believe this case is more analogous to Savickas than
Pittington.") Savickas has no application here because in that
case, the insured at his criminal trial testified that "the gun
did not go off accidentally" and that he "intentionally pointed
the gun . . . and pulled the trigger while the gun was so
aimed." Savickas, 739 N.E.2d at 382.
15
No. 2020AP1943
Pittington pleaded guilty to reckless conduct after shooting a
man named Harrison. Id. at 414. Harrison's estate filed a
negligence action against Pittington. Id. The insurer,
Metropolitan, filed a declaratory judgment action asserting that
any damages stemming from the shooting were not covered. Id. at
415.
¶37 The court addressed the preclusive effect of
Pittington's guilty plea in light of the policy language that
excluded from coverage injuries that were "in fact expected,
anticipated or intended." Id. at 418. In concluding that there
was no preclusive effect, the court observed that "[i]n pleading
guilty to reckless conduct, Pittington admitted he performed an
act that caused the harm or endangered the safety of Harrison
with 'conscious disregard' of a substantial and unjustifiable
risk." Id. However, such a plea was "in no way an admission
that he expected, anticipated or intended to cause bodily harm
to Harrington." Id. Although the Pittington court focused on
the nature of a plea, and not a finding by a jury as was the
situation in the present case, this distinction is immaterial
for our purposes.
¶38 Zuk and Pittington are both factually and analytically
analogous to the present case, and we find the approaches of
those courts persuasive. Additionally, several other
jurisdictions that have "considered the issue of whether
reckless conduct bars indemnification under similar insurance
policies . . . have found coverage when the insured's conduct is
reckless." Royal Indem. Co. v. Love, 630 N.Y.S.2d 652, 654
16
No. 2020AP1943
(N.Y. Sup. Ct. 1995); see, e.g., Vappi & Co. v. Aetna Cas. &
Sur. Co., 204 N.E.2d 273, 276 (Mass. 1965) ("Unintended or
unforeseen consequences of reckless or negligent acts . . . may
be within the definition of 'accident.'"); White v. Smith, 440
S.W.2d 497, 507 (Mo. Ct. App. 1969) ("But neither policy nor
principle excludes from the category of damages 'caused by
accident' for which coverage is afforded by a liability
insurance policy, even damage which might be, for other
purposes, regard[ed] as constructively intentional or damage
resulting from wanton and reckless conduct.").
¶39 In particular, the Zuk court's statement that "[a]
person may engage in behavior that involves a calculated risk
without expecting——no less reasonably——that an accident will
occur" is instructive here. Zuk, 574 N.E.2d at 1038. The court
continued to explain that "[s]uch behavior, which may be
reckless for criminal responsibility purposes, does not
necessarily mean that the actor reasonably expected the accident
to result." Id. So it is here. State Farm provides us with no
authority compelling the conclusion that a reckless act can
never be an "accident," and the analysis of the Zuk court,
echoed in Pittington, persuasively concludes that the opposite
is true.
¶40 Thus, in the context of this case, the issue of
whether Strand's conduct was an "accident" was not actually
litigated in the prior criminal proceeding. The jury here was
presented with a question of guilty or not guilty and did not
make a determination of what events actually occurred. It was
17
No. 2020AP1943
not asked to return a special verdict and made no specific
factual findings aside from finding that the elements of the
crime charged were proven beyond a reasonable doubt. Strand
gave inconsistent accounts of the events leading to Haeven's
death. We do not know if the jury accepted either of his
explanations, or if it rejected both.11
We acknowledge that the jury in Strand's criminal case
11
was given an instruction referencing an "accident," but this
fact does not alter our analysis. Specifically, the circuit
court instructed the jury regarding what it needed to find to
support a guilty verdict on the state-of-mind element of the
reckless homicide offense as follows:
Second, the defendant caused the death by what is
called criminally reckless conduct. Criminally
reckless conduct is defined as conduct that creates a
risk of death or great bodily harm to another person,
and the risk of death or great bodily harm was
unreasonable and substantial, and that the defendant
was aware that his conduct created an unreasonable and
substantial risk of death or great bodily harm.
The defendant, Mr. Strand, contends that he was not
aware that his conduct created an unreasonable and
substantial risk of death or great bodily harm, but
that what happened was an accident.
If the defendant did not act with an awareness
required for this crime, he is not guilty of this
crime.
This reference to an "accident" does not affect our
analysis for two reasons. First, the circuit court's reference
to an accident was made in the context of explaining what
Strand's argument was. It did not indicate that "accident" was
inconsistent with recklessness, but only specified that Strand
argued that his conduct was an accident. Second, this reference
does not address the same question as the definition of
"accident" for purposes of insurance coverage as espoused in our
case law, which takes into account an element of foreseeability
of the result of an act. See Am. Fam. Mut. Ins. Co. v. Am.
Girl, Inc., 2004 WI 2, ¶37, 268 Wis. 2d 16, 673 N.W.2d 65.
18
No. 2020AP1943
¶41 Likewise, if the jury rejected both of Strand's
explanations, we do not know what alternative explanation it
embraced. The jury additionally heard testimony from the
State's expert that although a fall can result in a skull
fracture as occurred in this case, "we also know from the
literature from short falls . . . that children do not
typically, or the vast majority do not incur any kind of brain
injury from a short fall." Another expert testified: "I don't
think hitting the counter and falling from that height would
have resulted in those injuries."
¶42 Further, we do not know what act committed by Strand
(if it accepted either of his explanations) was determined by
the jury to be reckless. The jury heard testimony both that
Strand dropped Haeven (whether it was from his knee while trying
to burp her or when he turned and hit the kitchen island) and
that he put her to bed without seeking medical attention. It
could have concluded that the first act (dropping Haeven,
however it happened) was an accident, but that it was reckless
for Strand to put her directly to bed without first seeking
medical care. In such a scenario, there would be an "accident"
covered by the State Farm policy.12
12Nowhere does the dissent claim to know exactly what took
place, nor could it. Its conclusion that Strand's conviction of
a reckless crime precludes an "accident" completely disregards
the possibility that Strand committed two acts, one accidental
and one reckless. The jury's verdict gives no insight into
whether this was the case, and the dissent reads far too much
into the verdict to reach its conclusion.
19
No. 2020AP1943
¶43 Additionally, we recognize that our conclusion is
consistent with the reading of the word "accident" by a
reasonable insured. See Shugarts, 380 Wis. 2d 512, ¶20. The
term is not defined in the policy, but under a common
understanding of "accident," it would seem that even if one
engages in reckless conduct, a resulting injury can still be, in
the common parlance of the word, "accidental." See Sheehan v.
Goriansky, 72 N.E.2d 538, 543 (Mass. 1947) (determining that
wanton or reckless conduct, "which is only constructively
intentional does not, for that reason alone, fall outside the
category of an injury 'caused by accident'" because "[t]o the
ordinary mind such a distinction would be wholly artificial").
¶44 For example, if a person is driving 90 miles per hour
on a city street, such conduct would no doubt be reckless, but
that doesn't mean it isn't an "accident" if the driver
unintentionally hits a pedestrian. Such an event may still
occur "by chance" or "without one's foresight or expectation."
See Am. Girl, 268 Wis. 2d 16, ¶37; cf. Fetherston v. Parks, 2014
WI App 2, ¶15, 352 Wis. 2d 472, 842 N.W.2d 481 (concluding that
an intentional acts exclusion did not apply to bar coverage
where "Parks did not intend to injure the Fetherstons when he
operated his vehicle in a reckless manner").13
This
13 conclusion is additionally supported by an
illustration included in the comments to the Restatement
(Second) of Judgments. Specifically, comment f to Restatement
(Second) of Judgments § 85, which addresses the effect of a
criminal judgment in a subsequent civil action, contains the
following example (illustration 10):
20
No. 2020AP1943
¶45 We therefore conclude that issue preclusion does not
bar Dostal from seeking insurance coverage for her claims
against Strand. The issue of whether Strand's conduct
constituted an "accident" was not actually litigated in the
prior criminal proceeding.
B
¶46 Having concluded that Dostal's claim for insurance
coverage is not barred by the doctrine of issue preclusion, we
D inflicts a blow on X as a result of which X dies. D
is convicted of intentional homicide. P,
administrator of X's estate, brings an action against
D for wrongful death, alleging D's act was negligent.
I had previously issued a policy of liability
insurance to D, insuring liability for D's negligent
acts but excluding intentional acts. In P's action
against D, P is not precluded by the criminal
conviction from showing that D's act was negligent
rather than intentional.
Although the conviction here was for reckless homicide
rather than intentional, the same principle holds. The dissent
incorrectly claims that this illustration says nothing about
insurance recovery. See dissent, ¶68. Indeed, the illustration
states that "P is not precluded by the criminal conviction from
showing that D's act was negligent rather than intentional." If
an act is negligent rather than intentional, it may be a covered
"occurrence" pursuant to the insurance policy referenced earlier
in the illustration.
21
No. 2020AP1943
turn next to address the resident relative and intentional acts
exclusions in the policy.14
¶47 We begin with the resident relative exclusion. This
exclusion in the policy excludes coverage for "bodily injury to
you or any insured within the meaning of part a. or b. of the
definition of insured." In turn, the policy defines "insured"
as "you and, if residents of your household: a. your relatives;
and b. any other person under the age of 21 who is in the care
of a person described above."
¶48 Case law sets forth the inquiry for determination of
whether a person is a "resident of your household." "A
determination of residency in a household is fact specific to
each case." Seichter v. McDonald, 228 Wis. 2d 838, 845, 599
N.W.2d 71 (Ct. App. 1999) (citing Schoer v. West Bend Mut. Ins.
Co., 473 N.W.2d 73, 76 (Minn. Ct. App. 1991)).
¶49 Such an analysis "requires a thorough examination of
all relevant facts and circumstances." Londre by Long v. Cont'l
W. Ins. Co., 117 Wis. 2d 54, 57, 343 N.W.2d 128 (Ct. App. 1983).
14 While our analysis is of course based on the exclusions
that are present in the policy, we observe at the outset that
the State Farm policy does not include an exclusion precluding
coverage for all criminal acts. Such criminal acts exclusions
are included in some policies. See West Bend Mut. Ins. Co. v.
Ixthus Med. Supply, Inc., 2019 WI 19, ¶38, 385 Wis. 2d 580, 923
N.W.2d 550; L.L. v. Med. Protective Co., 122 Wis. 2d 455, 463,
362 N.W.2d 174 (Ct. App. 1984). If State Farm had included such
a policy exclusion, this case likely would not be before us.
State Farm chose not to include a criminal acts exclusion here,
and is thus left to rely on the exclusions it did write in this
policy.
22
No. 2020AP1943
The factfinder must consider whether the person and the named
insured are:
(1) living under the same roof; (2) in a close,
intimate and informal relationship, and (3) where the
intended duration of the relationship is likely to be
substantial, where it is consistent with the
informality of the relationship, and from which it is
reasonable to conclude that the parties would consider
the relationship in contracting about such matters as
insurance or in their conduct in reliance thereon.
Id. at 57-58. In conducting this analysis, the factfinder
additionally considers (1) the age of the person, (2) whether a
separate residence is established, (3) the self-sufficiency of
the person, (4) the frequency and duration of the stay in the
family home, and (5) intent to return. Seichter, 228 Wis. 2d at
845. "Personal possessions remaining in the home and that the
home continues to be the mailing address may be considered but
are not dispositive." Id. (citing Schoer, 473 N.W.2d at 76).
¶50 State Farm contends that the resident relative
exclusion applies to bar coverage here. In State Farm's view,
Haeven was a "resident" of Strand's household as a matter of
law. It points to facts in the record indicating that the
paternity court had ordered Strand "frequent" physical placement
of Haeven, that Strand physically cared for Haeven, and that
Strand intended the duration of his relationship with Haeven to
be substantial such that he would consider her when contracting
about insurance.
¶51 However, contrary to State Farm's argument, an
examination of Dostal's deposition in this case indicates that
23
No. 2020AP1943
Haeven's "residency" with Strand is disputed. According to
Dostal's deposition testimony, Strand only cared for Haeven
without Dostal present four times, a count which includes two
overnight stays. Dostal further testified that there was no
formal schedule for placement and that Strand "was usually too
busy or didn't have time for the baby or didn't want her over
there." Given this testimony, we cannot conclude that Haeven
was a resident relative of Strand as a matter of law.
¶52 The determination of whether one is a resident
relative for insurance purposes is highly fact specific. Id.Here, the parties' submissions demonstrate that there are
genuine issues of material fact as to the question of whether
Haeven was a resident relative of Strand. Accordingly, summary
judgment is inappropriate on this issue.
¶53 We turn next to the intentional acts exclusion in the
policy, which sets forth that the coverage does not apply to
"bodily injury or property damage . . . which is either expected
or intended by the insured."
¶54 For purposes of an intentional acts exclusion, intent
to injure may be inferred where injury is substantially certain
to result from an insured's intentional conduct. K.A.G. by
Carson v. Stanford, 148 Wis. 2d 158, 163, 434 N.W.2d 790 (Ct.
App. 1988). If the conduct is intentional and if the conduct is
substantially certain to cause injury, we can infer intent to
injure only "if the degree of certainty that the conduct will
cause injury is sufficiently great to justify inferring intent
to injure as a matter of law." Id.24
No. 2020AP1943
¶55 We cannot, however, "infer intent to injure as a
matter of law merely because the insured's intentional act
violated the criminal law." Loveridge v. Chartier, 161
Wis. 2d 150, 171, 468 N.W.2d 146 (1991). Conviction of a crime
gives rise to an inference that an insured intended injury as a
matter of law in two circumstances only: (1) if intent to
injure is an element of the crime, and (2) if the crime in
question involves the insured committing an intentional act that
carries with it a substantial risk of injury or death. Id. at
172 (citing Poston v. U.S. Fid. & Guar. Co., 107 Wis. 2d 215,
219, 320 N.W.2d 9 (Ct. App. 1982); Raby v. Moe, 153 Wis. 2d 101,
114, 450 N.W.2d 452 (1990)).
¶56 Intent is plainly not an element of a reckless crime.
See Wis. Stat. §§ 939.24(1), 940.06(1). Thus, if the
intentional acts exclusion is to apply, the crime must involve
the insured committing an intentional act that carries a
substantial risk of injury or death. As analyzed above, a
determination that Strand's conduct was reckless does not
preclude a finding that his conduct was an accident for purposes
of insurance coverage. If his conduct was indeed an "accident,"
such a determination would compel the additional conclusion that
his conduct was surely not "intentional" so as to indicate that
the exclusion applies.
¶57 There are therefore genuine issues of material fact
regarding whether Strand's conduct was "intentional" such that
the intentional acts exclusion applies. Accordingly, summary
judgment is inappropriate on this issue.
25
No. 2020AP1943
IV
¶58 In sum, we conclude that issue preclusion does not bar
Dostal from seeking insurance coverage for her claims against
Strand. The issue of whether Strand's conduct constituted an
"accident" was not actually litigated in the prior criminal
proceeding. Further, we conclude that there are genuine issues
of material fact regarding the application of the resident
relative and intentional acts exclusions such that summary
judgment is inappropriate.
¶59 Accordingly, we reverse the decision of the court of
appeals and remand to the circuit court for further proceedings
consistent with this opinion.
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court.
26
No. 2020AP1943.akz
¶60 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). I
dissent because 12 jurors at Strand's criminal trial unanimously
decided beyond a reasonable doubt that Haeven's death was not an
"accident," and this precludes relitigating the issue of
Strand's coverage. Because the jury's verdict is controlling in
this case and cannot be relitigated, that ends the analysis as
to Strand——he has no coverage under his policy with State Farm,
which grants coverage for bodily injury caused by an "accident."
Since Strand has no claim against State Farm, as his causing
Haeven's death was beyond a reasonable doubt not an accident,
Dostal is also precluded from making a claim against State Farm
under Strand's policy. Dostal has no independent claim against
State Farm, and she cannot recover under Strand's policy any
more than Strand could.
¶61 Strand's conviction for his act of reckless homicide,
killing his own child Haeven, precludes Strand from claiming
that Haeven's death was an accident. In other words, because 12
jurors concluded beyond a reasonable doubt that Strand's actions
caused Haeven's death and that Strand was "aware" that he
"create[d] an unreasonable and substantial risk" of her death,
Wis. Stat. § 939.24(1), Haeven's death was not an unforeseen
"accident" under Strand's insurance policy, and he is precluded
from claiming coverage. As a result, because Strand has no
insurance coverage, Dostal cannot claim that he does.
¶62 Dostal attempts to circumvent this determination that
Strand's conduct was not an accident by suing State Farm under
1
No. 2020AP1943.akz
Wisconsin's direct action statute, Wis. Stat. § 632.24 (2021-
22).1 However, if Strand has no claim——which he does not because
his conviction for second-degree reckless homicide determined
beyond a reasonable doubt that this was not an "accident"——then
Dostal can have no claim direct or otherwise against State Farm
under Strand's policy. While she may have a claim against
Strand for his criminally reckless killing of Haeven, this is
not a risk for which Strand purchased insurance. Strand's
insurance contract does not provide Dostal with more coverage
than it would provide its own insured. The circuit court and
court of appeals therefore correctly concluded that State Farm
was entitled to summary judgment and declaratory judgment on the
issue of coverage.
¶63 The majority contorts its analysis in order to reach a
result of coverage in this very sad and unfortunate case. It
ignores the facts of this case and the law of our state, instead
reaching out to foreign authorities to create insurance that was
never provided by contract. As we have interpreted the term
"accident" in insurance contracts, Strand's act of "criminal
recklessness" cannot be an "accident" under his insurance policy
with State Farm because Strand was "aware" that he created an
"unreasonable and substantial" risk of Haeven's death. Wis.
Stat. § 939.24(1). Strand's prior conviction for second-degree
reckless homicide therefore precludes him from asserting that
Haeven's death was an "accident" for which he is granted
All references to the Wisconsin Statutes are to the 2021-
1
22 version unless otherwise indicated.
2
No. 2020AP1943.akz
coverage. The majority mistakenly frames the issue as whether
issue preclusion binds Dostal when the issue is actually whether
it binds Strand. Because Strand has no claim against State Farm
and cannot relitigate that issue, Dostal has no claim either.
¶64 The issue of whether Strand's killing of Haeven was an
"accident" was fully litigated and unanimously decided beyond a
reasonable doubt in Strand's criminal trial, and precluding
Strand from relitigating that issue comports with fundamental
fairness. Issue preclusion therefore prevents Strand from
asserting he has coverage under his policy with State Farm for
recklessly killing his own daughter, and Dostal cannot create
coverage that does not otherwise exist by suing State Farm under
the direct action statute. I dissent.
I
¶65 Strand seeks relitigation of this issue through
Dostal's suit under Wisconsin's direct action statute. However,
Dostal cannot recover on Strand's policy with State Farm because
Strand has no coverage as a matter of law. Wisconsin's direct
action statute permits Dostal to sue State Farm directly as
opposed to first suing Strand and then Strand filing a claim.
Dostal can only recover what Strand would be able to by filing a
claim——in this case, nothing.
¶66 Dostal brought her claim against State Farm under
Wisconsin's direct action statute:
Any bond or policy of insurance covering liability to
others for negligence makes the insurer liable, up to
the amounts stated in the bond or policy, to the
persons entitled to recover against the insured for
the death of any person or for injury to persons or
3
No. 2020AP1943.akz
property, irrespective of whether the liability is
presently established or is contingent and to become
fixed or certain by final judgment against the
insured.
Wis. Stat. § 632.24. "The direct action statute generally
endeavors to save litigation and reduce expense by determining
the rights of all parties in a single action involving the
insurance carrier . . . ." Hull v. Glewwe, 2019 WI App 27, ¶38,
388 Wis. 2d 90, 931 N.W.2d 266 (citing Est. of Otto v.
Physicians Ins. Co. of Wis., 2008 WI 78, ¶36 n.21, 311
Wis. 2d 84, 751 N.W.2d 805). In cases under the direct action
statute, the plaintiff "steps into the shoes of the tortfeasor
and can assert any right of the tortfeasor against the insurer."
7A Couch on Insurance § 104:13 (3d ed. 2022) (emphasis added).
Accordingly, "the liability to which the insurer is exposed is
predicated upon the liability of the insured." Kranzush v.
Badger St. Mut. Cas. Co., 103 Wis. 2d 56, 75, 307 N.W.2d 256(1981). In other words, a plaintiff bringing a direct action
cannot recover against a tortfeasor's insurer unless the
tortfeasor would himself be able to recover.
¶67 The implication for this case is that Dostal steps
into Strand's shoes. Having no claim against State Farm
independent from Strand and his policy, Dostal can recover from
State Farm only if Strand could do so. Therefore, the question
in this case is not whether Dostal is precluded from claiming
there was an accident. The question is whether Strand is
precluded from doing so. Because issue preclusion applies
against Strand, Strand has no coverage for Dostal to claim.
4
No. 2020AP1943.akz
¶68 This conclusion does not prevent Dostal from bringing
a claim against Strand and holding him personally liable for
Haeven's death. It merely prevents Strand from being
indemnified by his insurer for his criminally reckless acts.
This distinction is clearly lost on the majority. The majority
cites an example in the Restatement (Second) of Judgments § 85
comment f as support. Majority op., ¶44 n.13. That example
only says that a plaintiff in Dostal's position would not be
precluded from bringing a claim against the tortfeasor, limiting
the discussion to "[plaintiff's] action against [the
tortfeasor]." Restatement (Second) of Judgments § 85 cmt. f.
It says nothing about whether the tortfeasor would be able to
recover under his insurance policy.
¶69 Surely Dostal can still sue Strand and recover against
him personally, but that does not mean Strand——and, through the
direct action statute, Dostal——is entitled to payment by State
Farm. Strand has no coverage under his policy with State Farm
for his criminally reckless acts. Dostal cannot create coverage
that would not otherwise exist simply by suing under the direct
action statute. The majority's failure to recognize the
importance of the direct action statute leads the majority to
start off its analysis on the wrong foot.
II
¶70 Strand's criminal trial conclusively determined that
Haeven's death was not an "accident." Twelve jurors heard
evidence and argument regarding the circumstances surrounding
Haeven's death. Strand argued that he was not "aware" that he
5
No. 2020AP1943.akz
"create[d] an unreasonable and substantial risk of [Haeven's]
death, but instead that her death was an "accident."
Relitigation of this issue is therefore precluded. Whether
Strand caused Haeven's death by "accident" was decided before a
jury——under the high standard of "beyond a reasonable doubt"
rather that the lower civil "preponderance of the evidence"
standard——and 12 jurors unanimously decided to reject Strand's
defense. Thus, the first requirement for issue preclusion to
apply is satisfied because the issue of whether Strand's killing
of Haeven was an "accident" was "actually litigated and
determined" by the jury in his criminal trial. Aldrich v. LIRC,
2012 WI 53, ¶97, 341 Wis. 2d 36, 814 N.W.2d 433 (quoting Est. of
Rille v. Physicians Ins. Co., 2007 WI 36, ¶37, 300 Wis. 2d 1,
728 N.W.2d 693).
¶71 A jury of 12 unanimously found Strand guilty, beyond a
reasonable doubt, of second-degree reckless homicide contrary to
Wis. Stat. § 940.06(1). As the majority correctly notes,
"criminal recklessness" is defined by statute to mean "that the
actor creates an unreasonable and substantial risk of death or
great bodily harm to another human being and the actor is aware
of that risk." Wis. Stat. § 939.24(1) (emphasis added). In
contrast, mere "criminal negligence" is defined as "conduct that
the actor should realize creates a substantial and unreasonable
risk of death or great bodily harm to another." Wis. Stat.
§ 939.25(1) (emphasis added). The defining feature of
recklessness making it a higher degree of culpability is the
actor's actual awareness of the risk.
6
No. 2020AP1943.akz
¶72 However, the majority's analysis of our state law
stops there. Notably absent from the majority's analysis is any
recognition of the fact that we have previously interpreted the
terms "occurrence" and "accident" as used in insurance policies.
We have said that an "accident" is "an event which takes place
without one's foresight or expectation. [An undesirable]
result, though unexpected, is not an accident; the means or
cause must be accidental." Am. Fam. Mut. Ins. Co. v. Am. Girl,
Inc., 2004 WI 2, ¶37, 268 Wis. 2d 16, 673 N.W.2d 65 (emphasis
added) (quoting Accident, Black's Law Dictionary 15 (7th ed.
1999)). For a particular action to qualify as an "accident,"
the resulting injury must have been "unexpected" or "unforeseen"
from the standpoint of the insured. Schinner v. Gundrum, 2013
WI 71, ¶71, 349 Wis. 2d 529, 833 N.W.2d 685 (holding injuries
resulting from providing alcohol to underage persons were not
accidents).
¶73 The jury in Strand's criminal trial unanimously
concluded, beyond a reasonable doubt, that Strand was aware that
his actions created an unreasonable and substantial risk to
Haeven. The jury concluded beyond a reasonable doubt that
Strand was "aware of that risk." Wis. Stat. § 939.24(1). If
the risk of Haeven's death were unexpected or unforeseen to
Strand, such a finding would not be possible. This is clear
from the circuit court's instructions to the jury:
The defendant, Mr. Strand, contends that he was
not aware that his conduct created an unreasonable and
substantial risk of death or great bodily harm, but
that what happened was an accident.
7
No. 2020AP1943.akz
If the defendant did not act with an awareness
required for this crime, he is not guilty of this
crime.
(Emphasis added.)
¶74 The majority dismisses the circuit court's use of the
term "accident" because it "was made in the context of
explaining what Strand's argument was" and "did not indicate
that 'accident' was inconsistent with recklessness." Majority
op., ¶40 n.11. In other words, the majority reads the circuit
court's use of the term "accident" as consistent with
"recklessness." This is a tortured reading of the circuit
court's instruction. If an accident were consistent with a
criminally reckless act, Strand's argument that he committed
only an accident would be akin to an admission of guilt. The
circuit court obviously used the term "accident" understanding
that reckless conduct is not accidental.
¶75 The majority also argues the circuit court's use of
"accident" while instructing the jury "does not address the same
question as the definition of 'accident' for purposes of
insurance coverage as espoused in our case law, which takes into
account an element of foreseeability of the result of an act."
Majority op., ¶40 n.11. This entirely ignores what the circuit
court was explaining when it used the term "accident." The
court was instructing the jury that a guilty verdict required
finding that Strand was "aware that his conduct created an
unreasonable and substantial risk of death or great bodily harm"
(emphasis added)——that is, the harm had to have been
foreseeable. The circuit court used the term "accident" in a
manner consistent with our precedent and the term's common
8
No. 2020AP1943.akz
understanding, and the jury found, unanimously and beyond a
reasonable doubt, that Haeven's death was not an accident.
¶76 As the terms are defined in our statutes and
precedent, the definitions of "criminal recklessness" and
"accident" are inconsistent with each other. The circuit court
understood this and instructed the jury accordingly, as
Wisconsin courts have done before. See, e.g., Wis. JI—Criminal
772 (2005) (instruction on "accident" defense); State v. Grant,
No. 2010AP2272-CR, unpublished slip op., ¶11 (Wis. Ct. App.
Sept. 3, 2011) (per curiam) ("A defendant on trial for a crime
involving reckless conduct may offer the defense of accident to
defeat the mental state of awareness of risk necessary to prove
guilt."). In finding Strand guilty of recklessly killing
Haeven, the jury explicitly rejected the possibility that her
death was an "accident." Strand's prior criminal proceeding
therefore resolved the issue of whether there was an accident,
and this determination "was essential to the judgment,"
satisfying the first requirement of issue preclusion.2 Aldrich,
341 Wis. 2d 36, ¶97.
¶77 The majority nonetheless concludes the jury in
Strand's criminal trial did not determine whether Haeven's death
was an accident, making no attempt whatsoever to resolve this
case under Wisconsin law. Instead, the majority summarily
The majority criticizes my analysis because I do not
2
"claim to know exactly what took place" when Haeven died.
Majority op., ¶42, n.12. The majority misses the point. The
jury at Strand's criminal trial determined beyond a reasonable
doubt that Strand's actions causing Haeven's death were not an
accident regardless of what those actions were.
9
No. 2020AP1943.akz
concludes, "we observe that there is no Wisconsin case law
directly on point. Thus, we may look to case law of other
states for guidance." Majority op., ¶31. None of the
authorities the majority identifies make its conclusion more
persuasive.
¶78 Instead of turning to Wisconsin law, the majority
first looks to the New York Court of Appeals' decision in
Allstate Insurance Co. v. Zuk, 574 N.E.2d 1035 (N.Y. 1991).
Majority op., ¶32. The majority finds the following statement
from Zuk particularly persuasive: "A person may engage in
behavior that involves a calculated risk without expecting——no
less reasonably——that an accident will occur. Such behavior,
which may be reckless for criminal responsibility purposes, does
not necessarily mean that the actor reasonably expected the
accident to result." Zuk, 574 N.E.2d at 1038; majority op.,
¶35. The majority also relies on a similar holding by Illinois'
intermediate appellate court in Metropolitan Property & Casualty
Insurance Co. v. Pittington, 841 N.E.2d 413 (Ill. App. Ct.
2005); majority op., ¶36. That court concluded that an
admission of criminal recklessness was "in no way an admission
that he expected, anticipated or intended to cause" the
resulting harm. Pittington, 841 N.E.2d at 418.
¶79 This explanation is quite transparently nonsensical.
The jury found that Strand caused Haeven's death while "aware"
that he "create[d] an unreasonable and substantial risk" of her
"death or great bodily harm." Wis. Stat. § 939.24(1). The
majority concludes it is somehow possible that Strand was
10
No. 2020AP1943.akz
"aware" that he "create[d] an unreasonable and substantial risk"
of Haeven's death but "reasonably" did not expect it. Id. The
jury at Strand's criminal trial concluded Strand was aware he
created a risk to Haeven that was "unreasonable." The majority
offers no explanation as to how——under Wisconsin law——the jury
could have found that Strand was both aware of, but reasonably
did not expect, an unreasonable risk. The jury's unanimous
finding, beyond a reasonable doubt, that Strand was "criminally
reckless" means that Strand was aware of and therefore expected
the risk he created, and he unreasonably disregarded that risk.
¶80 Furthermore, the majority's reliance on foreign
authorities treats this issue as if it were settled. That is
not the case. Several courts in other jurisdictions have come
out on the opposite side, concluding that reckless conduct is
not accidental. See, e.g., Amica Mut. Ins. Co. v. Mutrie, 105
A.3d 595, 599 (N.H. 2014) ("[W]e conclude that because a
reasonable person in Mutrie's position would know that some harm
would result from her alleged knowing, reckless, and wanton
support and facilitation of her son's criminal drug activity,
Mutrie's conduct was inherently injurious, and, therefore,
cannot be considered accidental. Therefore, her conduct does
not constitute an 'occurrence' as is necessary to trigger
coverage."); Russ v. Great Am. Ins. Cos., 464 S.E.2d 723, 726
(N.C. Ct. App. 1995) (holding "a showing that the defendant
acted with 'reckless indifference to the likelihood' that his or
her acts 'will cause severe emotional distress'" precluded
coverage); Jim Barna Log Sys. Midwest, Inc. v. Gen. Cas. Ins.
11
No. 2020AP1943.akz
Co. of Wis., 791 N.E.2d 816, 830 (Ind. Ct. App. 2003)
(concluding a claim requiring proof of "knowledgeable or
reckless conduct" "does not arise from an 'accident' and, thus,
is not the result of an 'occurrence'"); Ohio Cas. Ins. Co. v.
Terrace Enters., Inc., 260 N.W.2d 450, 452 (Minn. 1977) (quoted
source omitted) ("If the single insured is allowed through
intentional or reckless acts to consciously control the risks
covered by the policy, a central concept of insurance is
violated.").
¶81 As a matter of fact, following the Appellate Court of
Illinois' decision in Pittington, upon which the majority
relies, that court has since declined to follow Pittington. In
Allstate Indemnity Co. v. Hieber, 24 N.E.3d 139, 144 (Ill. Ct.
App. 2014), the Appellate Court of Illinois concluded that an
insured's conviction for criminally reckless conduct precluded
the insured from later arguing the resulting bodily injury was
not "reasonably [] expected." In so holding, that court
rejected the dissent's argument which "draws a distinction
between an injury resulting from criminally reckless conduct and
one 'expected' by the insured," id. at 144-45, the same
reasoning the majority relies upon in this case.3
3Though the majority disputes the degree to which Allstate
Indemnity Co. v. Hieber, 24 N.E.3d 139 (Ill. Ct. App. 2014),
actually departed from Metropolitan Property & Casualty
Insurance Co. v. Pittington, 841 N.E.2d 413 (Ill. App. Ct.
2005), it nonetheless fails to contend with the more important
fact that Allstate Indemnity Co. repudiates the majority's
reasoning. See majority op., ¶36 n.10.
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¶82 The majority's reliance on foreign authorities without
any real analysis is a clear attempt to avoid the result
compelled under Wisconsin law: the jury's unanimous conclusion
beyond a reasonable doubt that Strand recklessly caused Haeven's
death precludes a finding that there was an "accident" under his
insurance policy. Neither logic nor legal authority supports
the majority's holding.
III
¶83 Strand has no coverage under his policy with State
Farm for his criminally reckless conduct. The jury in his
criminal trial concluded this beyond a reasonable doubt, and it
"comports with principles of fundamental fairness" to prevent
Strand from relitigating this issue. Aldrich, 341 Wis. 2d 36,
¶98. Both requirements of issue preclusion are therefore met,
and Strand cannot relitigate whether he has coverage for killing
his daughter under his policy with State Farm. Because Strand
has no claim against State Farm under his policy, neither does
Dostal.
¶84 Issue preclusion requires consideration of fundamental
fairness because the doctrine binds nonparties to prior
litigation. See Kruckenberg v. Harvey, 2005 WI 43, ¶57, 279
Wis. 2d 520, 694 N.W.2d 879 (explaining the difference between
issue preclusion and claim preclusion). In this case,
fundamental fairness is not a concern because Strand's criminal
trial is not binding any nonparties to that trial. It only
binds Strand by precluding him from claiming that his criminally
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reckless act was a covered "accident" absolving him of liability
to Dostal.
¶85 Established factors for assessing fundamental fairness
weigh in favor of precluding Strand from claiming Haeven's death
was an "accident."
Courts may consider some or all of the following
factors to protect the rights of all parties to a full
and fair adjudication of all issues involved in the
action: (1) could the party against whom preclusion
is sought, as a matter of law, have obtained review of
the judgment; (2) is the question one of law that
involves two distinct claims or intervening contextual
shifts in the law; (3) do significant differences in
the quality or extensiveness of proceedings between
the two courts warrant relitigation of the issue; (4)
have the burdens of persuasion shifted such that the
party seeking preclusion had a lower burden of
persuasion in the first trial than in the second; or
(5) are matters of public policy and individual
circumstances involved that would render the
application of collateral estoppel to be fundamentally
unfair, including inadequate opportunity or incentive
to obtain a full and fair adjudication in the initial
action?
Paige K.B. v. Steven G.B., 226 Wis. 2d 210, 220-21, 594
N.W.2d 370 (1999) (quoting Michelle T. v. Crozier, 173
Wis. 2d 681, 688-89, 495 N.W.2d 327 (1993)). Strand was a party
to his own criminal trial and had plenty of opportunity to
litigate the issue, including the opportunity to appeal the
judgment against him. There is no evidence that Strand's trial
was inadequate in any particular way. The jury found beyond a
reasonable doubt——a higher standard than the "preponderance of
the evidence" standard Strand would have to satisfy in a claim
against his insurer——that Strand recklessly killed Haeven.
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Finally, Strand had plenty opportunity and incentive to fully
litigate his case and avoid criminal penalty.
¶86 The fundamental fairness factors therefore weigh in
favor of precluding Strand from relitigating the issue of
whether his actions were accidental rather than criminally
reckless. If Strand were to file a claim under his policy with
State Farm, he would be precluded from asserting that Haeven's
death was an "accident" and receive no coverage. Through the
direct action statute, Dostal steps into Strand's shoes.
Because Strand cannot recover under his own policy with State
Farm, neither can Dostal.
IV
¶87 The jury in Strand's criminal trial conclusively
determined, beyond a reasonable doubt, that Strand caused
Haeven's death and that he was "aware" that his actions created
a "unreasonable and substantial" risk of her death. Wis. Stat.
§ 939.25(1). The jury's verdict foreclosed Strand from later
arguing that Haeven's death was an "accident." Because Strand
has no coverage under State Farm's policy, Dostal cannot recover
against State Farm either.
¶88 The majority avoids this inevitable conclusion by
ignoring the law of our state and blindly relying on foreign
authorities. It makes no effort to scrutinize the cases it
cites and summarily labels them "persuasive." As a result, the
majority interprets Strand's homeowner's insurance policy as
providing "Reckless Homicide Insurance," indemnifying
policyholders for their decisions to disregard known
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"unreasonable and substantial risk[s] of death or great bodily
harm." Wis. Stat. § 939.25(1). This is absurd.
¶89 For the foregoing reasons, I respectfully dissent.
¶90 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent.
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