March 18, 2016 – A state appeals court reversed and remanded a case to determine whether an insurer, under a condo owner’s insurance policy, must defend and possibly indemnify an insured accused of negligence in the drug overdose death of a guest.
In Oddsen v. Henry, 2015AP765 (March 16, 2016), a 2-1 majority for the District II Wisconsin Appeals Court reversed a summary judgment ruling for the insurer, noting genuine disputed facts regarding the circumstances that occurred.
In a dissent, Judge Paul Reilly said public policy barred coverage, concluding that the drug overdose occurred because a known drug abuser took illegal and powerful drugs voluntarily. “[H]e alone is legally responsible for his actions,” Judge Reilly wrote.
What Happened?
After Jason Oddsen died in 2010 from a mixed drug overdose that included heroin and oxycodone, his estate sued his friend, Elizabeth Henry. The estate alleged that Henry was negligent in “attempting to render aid” to Oddsen, even though it was an “accident.”
Henry lived at her mother’s condo in Hartland. Oddsen was sleeping at the condo, in the early morning hours, when he began showing signs of a drug overdose. Several hours later, after emergency responders were called, Oddsen was pronounced dead.
Henry’s mother had a condo unit owner’s policy with State Farm Fire and Casualty Company. Henry tendered her defense to State Farm under the policy issued to Henry’s mother. State Farm’s motions to intervene and bifurcate were granted. State Farm argued that it had no duty to defend or indemnify Henry under the condo policy.
Ultimately, the circuit court in Waukesha County granted summary judgment to State Farm, concluding it had no duty to defend or indemnify Henry. The court concluded that Henry acted “intentionally” in failing to obtain aid, and public policy precluded coverage.
In reversing, the appeals court majority noted crucial unresolved facts about the time period that began when Oddsen started showing signs of overdose and the time when Henry sought emergency assistance. Those facts will determine whether State Farm’s policy requires the insurer to defend Henry, the majority explained.
Facts in Dispute
Discovery revealed that Oddsen was a drug abuser. But there were conflicting facts about what transpired in the early morning hours before Oddsen’s death.
Under the policy, State Farm agreed to defend and indemnify an insured for “occurrences,” which includes “accidents” that resulted in bodily injury.
However, the policy excludes coverage for bodily injury when it is “either expected or intended by the insured” or “which is the result of willful and malicious acts.”
State Farm argued that Henry intentionally ignored the gravity of her friend’s overdose condition by failing to call 911 sooner. State Farm also alleged that it was no “accident” because Henry knew Oddsen was a drug addict, participated in a drug party with him, and then failed to call authorities despite his grave condition for fear of getting in trouble.
State Farm also argued that, based on the allegations in the estate’s amended complaint, Henry would be entitled to immunity under the state Good Samaritan Law.
The estate argued that Henry’s actions were not intentional – she attempted to provide aid to Oddsen but was merely negligent in providing it. However, it was still an “accident” and the policy exclusion for intentional acts did not apply, the estate argued.
The majority ruled that too many facts are still in dispute, and a trier of fact must decide them. “[T]he evidence in the record as to whether Henry’s actions were negligent or intentional is disputed,” wrote Chief Appeals Court Judge Lisa Neubauer.
The majority noted conflicting testimony between Henry and two other defendants who were involved, Christopher Cavanaugh and Brian Hoffman.
“Cavanaugh and Hoffman relay that Henry was frantic, aware of Oddsen’s dire consequences for hours, and wanted to avoid getting in trouble,” Neubauer wrote.
“Henry has denied that she delayed in 911 because she did not want to get in trouble – a delay that was mere minutes under her version – creating disputed issues of fact as to whether her conduct was negligent, or amounted to emergency care rendered at the scene of the emergency, and if so, whether it was rendered in ‘good faith.’”
The majority ruled that it was error to grant summary judgment in the face of those disputed facts. It also ruled that it was error to rule that public policy barred coverage.
“Again, the circuit court’s resolution of this issue hinged on its choosing among disputed facts, which was inappropriate on a motion for summary judgment,” Neubauer wrote.
Dissent
Judge Paul Reilly dissented. He said Oddsen’s death was not caused by an “occurrence” under the State Farm policy, and “public policy precludes liability as Elizabeth Henry was not the proximate cause of Jason Oddsen’s death.”
“The undisputed fact is that Oddsen voluntarily ingested powerful, addictive, illegal, and known lethal drugs, and he alone is legally responsible for his actions,” Reilly wrote.
“Oddsen (via his Estate) and his family now seek to profit from Oddsen’s voluntary choices,” he wrote. “Oddsen took the lethal dose of drugs, and he alone declined Elizabeth’s offer to take him to the hospital,” Judge Reilly continued.
He said if Henry is one of the causes of Oddsen’s death, because of her actions, then so are the family and friends who knew Oddsen needed help for his drug addiction.
“While we all may share in the moral failure to save Oddsen’s life, it is only Oddsen who bears the legal cause for his death,” he wrote.
Public policy precludes Henry’s liability, Reilly concluded. But he also concluded that Henry is not covered under the policy, as the estate did not allege an “occurrence.”
“Even though Oddsen’s death might have been accidental, the causal events were not, and, therefore, there was no accidental occurrence under State Farm’s policy,” wrote Judge Reilly, noting Henry took volitional acts that contributed to Oddsen’s death.
