Nov. 1, 2021 – A man’s conviction on a charge of second-degree reckless homicide means that his homeowner’s insurance policy did not cover the death of his victim, the Wisconsin Court of Appeals District III has ruled.

In Dostal v. Strand, 2020AP1943 (Oct. 19, 2021) a three-judge panel heard an appeal in a wrongful death suit filed by Lindsey Dostal. Dostal and her boyfriend Curtis Strand were the parents of a three-month-old girl, Haeven, who died while in Strand’s care in 2017.

Strand gave the police several versions of the events that led to the Haeven’s death. In each version, Strand said she suffered a fall.

But the medical examiner concluded that the injuries that killed Haeven – a fractured skull and a brain injury – were too severe to have been the result of a fall. Rather, the medical examiner determined that the injuries were the result of blunt force trauma. After being charged with first-degree reckless homicide and obstructing an officer, Strand was convicted of second-degree reckless homicide.

When Dostal sued him, Strand contacted his insurer State Farm and sought defense and indemnification under his homeowner’s policy. The insurer moved to intervene in the lawsuit and stay the adjudication of Strand’s liability until the coverage issue had been resolved.

Of Occurrences and Accidents

Under the insurance policy, State Farm was obligated to pay up to the liability limit and tender a defense to Strand in any suit brought against him for damages due to bodily injury or property damage caused by “an occurrence.”

The policy defined an occurrence as “an accident, including exposure to conditions, which results in (a) bodily injury; or (b) property damage; during the policy period.” The policy contained an exclusion of coverage for “bodily injury … which is either expected or intended by the insured.”

The circuit court judge concluded that because the jury found beyond a reasonable doubt that Strand recklessly caused the death of the child by creating an unreasonable and substantial risk of great bodily harm and death, the child’s death could not be “an occurrence” under the policy. The appellate panel agreed.

Dostal argued to the panel that the trial judge made a mistake by focusing only on the jury instruction in Strand’s criminal case. Wisconsin Supreme Court precedent – Estate of Sustache v. American Family Mutual Insurance Co., 2008 WI 83, 311 Wis.2d 548, 751 N.W.2d 845 (2008) and Talley v. Mustafa, 2018 WI 47, 381 Wis. 2d 393, 911 N.W.2d 55 (2018) – required the trial court to review the entire record and determine whether any disputed facts existed about the event that caused the child’s injury.

Dostal argued that Strand’s assertion that the child died from a fall versus the medical examiner’s conclusion that the child died from blunt force trauma was a disputed fact.

While the forensic pathologists who testified at trial gave an opinion as to the veracity of Strand’s statements that the child fell, they failed to come up with an alternate theory as to how the child’s injuries occurred. Strand’s explanation for the child’s injuries remained to support a conclusion that the child died from an accident, and a grant of summary judgment wasn’t warranted, Dostal argued.

Conviction Distinguishes This Case

The appellate panel disagreed with Dostal and distinguished Sustache and Talley.

“Unlike in the present case, neither of the aforementioned cases had a criminal adjudication against which to review the facts,” wrote Presiding Judge Lisa J. Stark.

“As a result, the courts in those cases had to rely primarily on the plaintiff’s complaints. The jurors in Strand’s criminal case, by contrast, heard the testimony of witnesses, weighed the credibility of those witnesses, considered the jury instructions, and then convicted Strand of second-degree reckless homicide.”

Strand’s conviction was dispositive, Stark wrote.

“As noted, the circuit court had instructed the jurors that given Strand’s argument that his actions were an ‘accident,’ their charge was to find him not guilty if he did not possess the required awareness of the unreasonable and substantial risk of death or great bodily harm to Haeven that he had created. By finding him guilty, the jury necessarily concluded that Strand was aware that his conduct created an unreasonable and substantial risk of death or great bodily harm, and therefore, his conduct was not an accident.”

Dostal also argued that the circuit court’s ruling treated conduct undertaken with an awareness of risk or harm the same as intentional conduct. That was improper because reckless acts can still be accidental, Dostal’s lawyers wrote in their brief

“Traversing across the ice on a frozen lake is conduct where there is an awareness of risk – this does not mean that the fall is intended or expect.”

That may be true for lesser forms of recklessness, Judge Stark wrote, but not all forms.

“However, when a jury has found an individual’s conduct to be criminally reckless – which requires a finding that the individual was aware that his or her conduct created an unreasonable and substantial risk of death or great bodily harm – it is axiomatic that no accident occurred.”