Lindsey Dostal v. Curtis Strand

2023 WI 6, 984 N.W.2d 382, 405 Wis. 2d 572

• Court: Wisconsin Supreme Court
• Decided: January 26, 2023
• Docket: 2020AP001943
• Status: Published

Opinion

2023 WI 6

SUPREME 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 157 PDC 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 6 NOTICE 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.

11 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

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.

¶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.

¶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

which may be reckless for criminal responsibility purposes, does

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.

12 No. 2020AP1943.akz

¶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.

¶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.

¶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

15 No. 2020AP1943.akz

"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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