Godfrey & Kahn Updates
Wisconsin Court of Appeals considers insurance coverage for allegations of failure to render aidMarch 01, 2017
In Estate of Oddsen v. Henry, the Wisconsin Court of Appeals considered insurance coverage in the context of tragic circumstances. One night in February of 2010, Jason Oddsen, who was a regular abuser of illegal drugs, consumed a mixture of heroin, methodone, oxycodone and alprazolam while watching a basketball game at a friend’s house. While much of what happened next is disputed, Elizabeth Henry, a companion of Oddsen’s, witnessed his drug use and subsequent overdose but did not immediately seek medical assistance.
Oddsen’s estate sued Henry for negligence in the failure to render aid. Henry tendered the claim to her condominium owner’s insurer, State Farm Fire & Casualty Company. State Farm agreed to defend Henry but intervened in the lawsuit seeking a judicial declaration of no coverage. State Farm contended that the failure to render aid to Oddsen was not an “occurrence” under its policy and that coverage was excluded by the intentional acts exclusion in any event. The trial court agreed, declaring that the undisputed facts showed only intentional conduct, entitling State Farm to judgment of no coverage.
The Wisconsin Court of Appeals reversed. On appeal, Henry argued that her failure to render aid was in fact accidental and that the intentional acts exclusion did not apply because her “liability is not in wanting [Oddsen] to die, but in falling below the standard of care in the manner in which she rendered aid.”
State Farm argued that the evidence showed that Henry committed a “series of volitional acts,” in effect standing idly by while Oddsen ingested drugs and overdosed, leading to his death. State Farm seemed to employ a two prong argument, asserting that these facts showed only volitional conduct that was not accidental, and also that even if those facts were proven, Henry would be immune from liability under Wisconsin’s Good Samaritan law. See Wis. Stats. § 895.48(1). State Farm also contended that the intentional act exclusion applied, because a reasonable person in Henry’s position would have understood that some harm was substantially certain to befall Oddsen if prompt aid was not given.
The Court’s consideration of this appeal was undoubtedly made more complicated by the fact that the parties both relied mostly on the facts alleged in the pleadings, while attempting to avoid or minimize contrary evidence in deposition testimony. Ultimately, the court concluded that factual disputes regarding Henry’s conduct precluded a ruling on insurance coverage:
The parties provide no authority for their suggestion that we could pick and choose which allegations and facts to rely on to either find no coverage for the insured as a matter of law, or no underlying liability of the insured as a matter of law, when the allegations of the complaint are not evidence and the facts of record on summary judgment create disputed issues of material fact.
Accordingly, the court held that disputed issues of fact precluded a ruling on insurance coverage and remanded the case back to the trial court for further proceedings.
Judge Reilly’s dissent is interesting, as he analogizes the facts of this case to another case involving tragic circumstances, Schinner v. Gundrum. In Schinner, the Wisconsin Supreme Court examined the issue of insurance coverage after a teenage drinking party resulted in an assault. The court held that the insured homeowner “did not host the underage drinking party by mistake, against his will, or by chance,” but instead engaged in a series of volitional acts that put into place the circumstances leading to the assault. The court found no coverage for the assault claim, as no occurrence had been alleged. Applying that holding to Oddsen’s claim, Reilly stated:
Every action taken by [Henry] – from [her] knowledge of Oddsen ingesting large quantities of varied types of drugs to [her] keeping Oddsen at her home rather than taking him to a hospital and her subsequent failure to request medical help – were a series of volitional acts on the part of both Oddsen and [Henry] that led to Oddsen’s death. 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.
This case is back before the trial court in Waukesha County.