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Reckless murder is an intentional act



Lindsey Dostal appealed against the State Farm Fire and Casualty Company's summary judgment. The court concluded that State Farm did not provide coverage under Curtis Strand's homeowners' insurance policy for Dostal's claim against Strand as a result of Dostal's and Strand's infant daughter Haeven Dostal's death while she was in Strand's care. I Lindsey Dostal, Individual and as Special Administrator of the Estate of Haeven Dostal v. Curtis Strand and ABC Insurance Company, State Farm Fire and Casualty Company nr 2020AP1943, Court of Appeals of Wisconsin, District III (19 October 2021) requested compensation from State Farm for the wrongful death.

The Court of Appeal ruled that Haeven's death was not the result of an incident, which is defined in the insurance as an accident that results in bodily injury or property damage during the insurance period. The court concluded that Strand's criminal conviction for second-degree ruthless murder for causing Haeven's death ruled out Dostal's claim that Strand's actions were unintentional because criminal ruthlessness requires more than unintentional behavior. It came to this conclusion because, in order to find Strand guilty of this crime, the jury had to find that Strand created an unreasonable and significant risk of great bodily harm to Haeven and that he acted aware of this risk. that the insurance according to the undisputed facts in this case did not provide coverage for Dostal's claims. A jury in a criminal trial rejected the argument that Strand's actions were unintentional and convicted him of second-degree ruthless murder. In doing so, the jury found it necessary, beyond a reasonable doubt, that Strand was aware that his conduct created an unreasonable and significant risk of injury to Haeven so that her death was not due to an accident. Consequently, Strand's conduct did not constitute an incident under the policy.

On July 11, 2017, while in Strand's care, Haeven died after sustaining a skull fracture and an associated brain injury. As part of the subsequent investigation, Strand provided the police with different versions of the events that led to Haeven's death. In each of Strand's recitations, he stated that Haeven was involved in a case. However, the forensic pathologist determined that Strand's explanations of the events that occurred before Haeven's death were incompatible with the severity of her injuries. In the end, the medical examiner concluded that Haeven's death was caused by anoxic encephalopathy after a resuscitation of cardiac arrest due to trauma with blunt force.

Strand was convicted of second-degree ruthless murder and obstruction by a police officer. Dostal then filed a civil lawsuit against Strand and his insurers, claiming that Haeven's injuries were almost entirely caused by the negligent acts of [Strand] including, but not limited to negligent supervision, not properly holding or securing Haeven to prevent her from [19455954] State Farm filed a claim for summary and / or declaratory judgment, claiming, in part, that there was no coverage for Dostal's claim because there was no The district court upheld State Farm's claim and, in the relevant part, concluded:

As a law [, ]conviction of the second [-] degree ruthlessly prevents the events from being an "event" because of the the fact that the jury had to find beyond a reasonable doubt that Strand ruthlessly caused another person's death by creating an unreasonable and significant risk [of] major bodily injury and death and that Strand acted with awareness of that risk.

The court further concluded that the exclusion of intentional acts blocked the coverage because Strand's intention could be derived by law.

DISCUSSION

En The purpose of the Court of Appeal in interpreting an insurance is to enforce the parties' intention. We interpret a policy as it would be understood by a reasonable person in the insured's situation. If the policy language is unambiguous, the policy as it is written is applied; but if it is ambiguous – that is, reasonably receptive to more than one interpretation – we interpret it against the insurer and in favor of coverage.

Dostal claimed that there were significant disputed facts about the cause of action here, and that the district court therefore erred in upholding State Farm's summary judgment. Strand told police that Haeven fell off his knee while trying to feed her. Alternatively, Strand stated that he dropped Haeven when he tried to heat her bottle. The forensic scientists gave their views on the truthfulness of Strand's statements; however, they never provided an alternative theory as to how the incident occurred.

As part of the jury's instructions, the criminal court explicitly stated what constitutes criminal ruthless behavior in Wisconsin:

Criminal ruthless behavior is defined as behavior that creates the risk of death or major bodily injury to another person, and the risk of death or major bodily injury was unreasonable and tangible and that the defendant was aware that his conduct created an unreasonable and tangible risk of death or major bodily injury.

The defendant, Mr. Strand, claims that he was not aware that his behavior created an unreasonable and significant risk of death or major bodily injury, but that what happened was an accident.

If [Strand] did not act with an awareness required for this crime, he is not guilty of this crime.

After receiving these instructions, the jury considered and found Strand guilty, beyond reasonable doubt, of second-degree ruthless murder. By finding him guilty, the jury concluded that Strand was aware that his behavior created an unreasonable and significant risk of death or serious bodily injury and that his behavior was therefore not an "accident".

When a jury has found an individual's behavior to be criminally ruthless – which requires a finding that the individual was aware that his or her behavior created an unreasonable and significant risk of death or serious bodily injury – it is axiomatic that no accident occurred.

Referring to the case law of other jurisdictions, Dostal argued that reckless conduct for the purpose of insurance coverage implies a different degree of voluntariness than intentional conduct and should not be categorically excluded from the scope of insurance coverage. She further claims that a reasonable jury would conclude that Strand's conduct, even if it was ruthless, was an accident and constituted an incident. She therefore claimed that the district court erred in upholding State Farm's claim.

Dostal's argument in this regard misunderstands the language used by the insurance police. Whether a plaintiff's injuries arose from an incident and whether the insured engaged in intentional conduct are separate and distinct analyzes. In particular, the “occurrence” analysis primarily asks whether the tortious event was unintentional, while the “intentional act” analysis asks whether the insured expected or intended the damage. Wisconsin's Penal Code recognizes a degree of menstrual sale separated from unintentional and intentional that is highly relevant to this negligence.

Combining the analysis of "occurrence" with the analysis "intentional act" destroys this separation, violates the principles of contract interpretation and is incorrect according to law.

"carelessly caused the death [d] of another human being" by "creating [ing] an unreasonable and significant risk of death or serious bodily injury." Consequently, the district court ruled that the insurance did not cover Dostal's claim because Haeven's bodily injuries and death were not due to an event.

There is nothing more sad than the death of a child except perhaps an unwanted death. child caused by her father's ruthless indifference who was convicted by a jury of his peers for being the criminal cause of the child's death. Since the criminal jury found fault beyond a reasonable doubt, the act could not have been "unintentional" or an "event" that would require an insurer to defend or indemnify the person responsible.


© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to the position of insurance consultant specializing in insurance coverage, insurance claims handling, bad faith and insurance fraud almost equally for insurers and policyholders.

He also acts as an intermediary or arbitrator. insurance-related disputes. He practiced law in California for more than 44 years as a lawyer for insurance coverage and claims management and more than 54 years in the insurance industry.

Subscribe to Excellence in Claims Handling at https://barryzalma.substack.com/welcome.

He is available at http://www.zalma.com and zalma@zalma.com. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award. For the past 53 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurers and their claimants to become professionals in insurance claims.

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