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Oddsen v. Henry

Court of Appeals of Wisconsin

March 16, 2016

JOSHUA ODDSEN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JASON THOMAS ODDSEN, CAROLYN ODDSEN AND MARK ODDSEN, PLAINTIFFS-APPELLANTS,
v.
ELIZABETH HENRY AND ABC INSURANCE COMPANY, N/K/A STATE FARM FIRE & CASUALTY COMPANY, DEFENDANTS-RESPONDENTS, DEF INSURANCE COMPANY, BRIAN HOFFMAN, GHI INSURANCE COMPANY, JKL INSURANCE COMPANY, CHRISTOPHER CAVANAUGH, MNO INSURANCE COMPANY AND PQR INSURANCE COMPANY, DEFENDANT

         Oral Argument January 26, 2016

         Editorial Note:

         This opinion is subject to further editing and modification. The final version will be published in bound volume of the official reports.

          APPEAL from an order of the circuit court for Waukesha County: PATRICK C. HAUGHNEY, Judge. Cir. Ct. No. 2013CV282.

         On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Christopher L. Strohbehn, Kathryn A. Keppel, and Emily I. Lonergan of Gimbel, Reilly, Guerin & Brown LLP, Milwaukee. There was oral argument by Emily I. Lonergan.

         On behalf of the defendants-respondents, the cause was submitted on the brief of Mark D. Malloy and Matthew V. Fisher, Milwaukee. There was oral argument by Mark D. Malloy.

         Before Neubauer, C.J., Reilly, P.J., and Hagedorn, J. REILLY, P.J. (dissenting).

          OPINION

         NEUBAUER, C.J.

         The estate and parents of Jason Oddsen appeal the circuit court's summary judgment in favor of State Farm Fire & Casualty Company. The court found that State Farm has no continuing duty to defend or duty to indemnify its insured, Elizabeth Henry, under a condominium unit owner's policy, for tort claims alleging Henry was negligent in failing to render or obtain aid for Oddsen, who died from acute mixed drug intoxication. The material facts regarding Henry's tort liability--her knowledge and actions--are disputed and, as such, State Farm's motion for summary judgment seeking a declaration of no coverage must be denied.

         On the night of February 2, 2010, Oddsen went to the home of Christopher Cavanaugh to watch a basketball game with Kyle Walters, Brian Hoffman, and Henry. During the course of the party, Oddsen, who was a regular abuser of drugs, consumed a mixture of heroin, methadone, oxycodone, and alprazolam that proved fatal early the next morning. Oddsen began to show signs of having overdosed while staying at the home of Henry's mother. It is largely this time period, when Oddsen first began exhibiting signs of having overdosed to when Henry sought emergency assistance, that is critical for purposes of deciding whether Henry is still entitled to a defense, and ultimately, perhaps indemnity, in the action Oddsen's estate brought against her under a condominium unit owner's insurance policy State Farm issued to Henry's mother. Yet, there are, as State Farm states in its brief, " two distinct versions of the events" that led up to Oddsen's death. Oddsen's estate claims that at approximately 4:00 a.m., Henry noticed that Oddsen was having difficulty breathing, but that she did not contact the police until more than two hours later. Henry, however, claims that she did not notice anything wrong with Oddsen until 5:45 a.m., when he abruptly stopped snoring. She woke him, and he was groggy but responsive. Henry talked Oddsen into going to the hospital to " make sure that everything [was] ok," and, as he was putting on his shoes, he slumped over and was unresponsive. A few minutes later, Henry contacted 911.

         The circuit court granted State Farm summary judgment declaring that it has no continuing duty to defend or duty to indemnify Henry. The circuit court concluded that public policy and a lack of an " occurrence" precluded coverage, a conclusion the circuit court based on its " important" finding that Henry's " failure to obtain aid was not an accident," that her actions were " intentional" in doing " nothing over a period of several hours as Jason Oddsen perished before her eyes." These facts were disputed and, as such, State Farm's motion for summary judgment must be denied.

         BACKGROUND

         The Allegations of the Complaint

         Joshua Oddsen, as special administrator of the estate of Jason Oddsen, along with Oddsen's parents, Carolyn Oddsen and Mark Oddsen (the Estate), commenced this action against, among others, Henry, alleging that Hoffman and Cavanaugh provided Oddsen with " numerous controlled and uncontrolled substances including ... [a]lprazolam, [o]xycodone, [h]eroin and [m]ethadone." [1] Oddsen began acting incoherently while at Cavanaugh's house, causing Henry, Cavanaugh and Hoffman to become concerned about him. After Oddsen regained consciousness, Henry drove Oddsen to her home in the village of Hartland, arriving there sometime between 1:00 a.m. and 1:30 a.m.

         The Estate's complaint alleges that, starting at approximately 4:00 a.m., Henry noticed that Oddsen was having difficulty breathing. Instead of calling " authorities," she called a number of acquaintances, including Hoffman and Cavanaugh, using Oddsen's phone. About one hour later, Henry again spoke with Hoffman who responded to her by trying to ride his bicycle to her residence. While in route, Hoffman was stopped by police and taken to a park-and-ride. Hoffman did not mention to police that there was an emergency at Henry's residence. Using Oddsen's car, Henry drove to the park-and-ride to pick up Hoffman, leaving Oddsen at her residence.

         When Henry and Hoffman returned back to her residence, they " negligently attempted to render aid to Oddsen." They then dragged him outside Henry's residence and into the driveway. Hoffman and a neighbor contacted 911. Paramedics arrived, rendering emergency aid to Oddsen before taking him to the hospital where, at 7:28 a.m., he was pronounced dead. The Estate alleges claims against Henry based on her " negligent attempt to render aid." [2]

         State Farm Accepts Henry's Tender of Defense Under a Reservation of Rights

         Henry tendered a defense of this action to State Farm under a condominium unit owner's policy it issued to Henry's mother. State Farm accepted Henry's tender under a reservation of rights. State Farm moved to intervene in the action and to bifurcate and stay the underlying merits from the issue of coverage. State Farm's motion to intervene was granted, and the motion to bifurcate and stay was held in abeyance pending anticipated motions on coverage. State Farm filed an intervenor complaint, alleging that it had no duty to defend or indemnify Henry.

         Henry's Deposition Testimony

         Meanwhile, discovery progressed. Henry was deposed and testified that Oddsen was a regular user of opiates, although February 2 was the first time she saw him using heroin. Oddsen was " high" about " every other day," and, if he was not high, then he was in withdrawal, Henry testified. When Henry first saw Oddsen that day at around 3:00 p.m., he was not exhibiting any signs of withdrawal and so she assumed he had consumed drugs earlier that day. Oddsen showed Henry a bag and told her it contained heroin. Although Henry never saw Oddsen consume heroin that night, she knew that he had done so. Oddsen might have taken other drugs, she said, but she did not know for sure. She noticed that there were half-straws in the loft of Cavanaugh's home, which she knew were used to snort pills. Towards the end of the night, Oddsen appeared intoxicated. He was falling asleep and not talking much, which was " so usual" for him.

         Around 12:00 a.m., Oddsen left with Henry, Hoffman, and Walters. Oddsen had no difficulty breathing and was able to walk to his car. Although he was still intoxicated, he started driving. He was " swerving on the road," going " in and out" of consciousness. Ultimately, Henry convinced Oddsen to let her drive. They arrived at her mother's home around 2:00 a.m. Later, she saw Oddsen crushing a pill, which turned out to be trazodone, but she told him that he had had enough, and he relented.

         Over the next couple hours, Henry was up several times, and Oddsen might have gotten up to use the bathroom once. Hoffman called Henry multiple times, and he was asking strange questions, such as why was Oddsen snoring so loudly.[3] Hoffman said he would come to Oddsen and Henry, but Henry told him not to come. Henry called Cavanaugh to tell him that Hoffman kept calling her. Cavanaugh, she testified, could hear Oddsen snoring, but she did not think anything was wrong with Oddsen. Cavanaugh said to " ignore it" and that Oddsen was " fine."

         At some point, Oddsen stopped snoring. Henry woke him, and he was pale and groggy but responsive. She suggested that they go to the hospital to " make sure that everything's ok." Initially, he refused, but when she threatened to call 911, he agreed to go. They walked down the stairs to the front door, and Oddsen started putting on his shoes. Oddsen slumped down and was complaining about leaving when he then became unresponsive.

         By then Henry had opened the front door to find Hoffman outside in the driveway pacing. Hoffman had insisted on coming over and had ridden his bicycle there. Henry and Hoffman tried to get Oddsen inside his car, but he was too heavy. " [W]ithin that same couple minutes," Henry called 911.[4] She thought about thirty or forty-five minutes might have passed from when Oddsen stopped snoring to when she had called 911. She explained that she had initially decided against calling 911 because Oddsen was walking and talking, and he did not want help. She denied that she delayed in calling 911 because she did not want to get in trouble. She did not recall calling Hoffman and expressing concern over swelling of Oddsen's face, and denied that she left to pick up Hoffman, or that Oddsen was unconscious when she allegedly came back with Hoffman. She acknowledged that she told the police a different story, but she said she just panicked.

         Cavanaugh's Deposition Testimony

         Like Henry, Cavanaugh testified that Oddsen was a habitual drug user. Oddsen was using opiates almost every day, and Cavanaugh had seen him using heroin hundreds of times. In the last year of his life, Oddsen was ingesting a mixture of drugs like oxycodone, alprazolam, or methadone. It was common sense that mixing drugs was dangerous, and Oddsen knew this because he and Cavanaugh had talked about acquaintances that had died from mixing drugs. Oddsen was incoherent every day, and it was " very, very noticeable."

         On February 2, Oddsen consumed methadone, oxycodone, alprazolam, and heroin.[5] Afterwards, Oddsen was incoherent but not asleep, and he never lost consciousness. Oddsen was spilling food on himself and nodding in and out, but this was normal for him. Around 9:30 or 10:00 p.m., when Cavanaugh's girlfriend arrived home, Oddsen, Henry, Hoffman, and Walters left. Oddsen was able to walk and talk, and, while he was the most intoxicated person there, he was nevertheless " coherent enough to get up and ... drive three people home." [6]

         Around 3:30 or 4:00 a.m., Henry called Cavanaugh from Oddsen's phone--she may have called earlier, but Cavanaugh was sleeping--and she said that Oddsen was breathing " funny." Henry was " frantic." Henry held up the phone to Oddsen's mouth so that Cavanaugh could hear. Cavanaugh told her that Oddsen was a heavy sleeper or snorer, which is what it sounded like to him. He advised Henry that if she was really concerned she should wake up her mother or Oddsen's mother or call an ambulance.

         Hoffman's Written Statement to Police

         Hoffman gave a written statement to police stating that when they left Cavanaugh's residence, Oddsen's condition was no where near life-threatening. He was alert and was able to drive Hoffman home on the other side of town. Later, Henry called Hoffman, but did not tell him about the seriousness of Oddsen's condition. Henry told Hoffman that Oddsen was " alert and talking," but this was a lie. Henry picked up Hoffman in Oddsen's car. Once at Henry's house, Hoffman walked up the stairs and saw Oddsen. Hoffman checked Oddsen's pulse and then immediately started giving him CPR. Foam was coming from Oddsen's mouth, and he was making a gargling noise. Oddsen was cold to the touch, his lips were a blue, purple color, and his skin was gray. Oddsen had feces on his pants. Henry, Hoffman said, only " cared about getting [Oddsen] outside so her mom [did not] hear." Henry and Hoffman started taking Oddsen to the car, but he was too heavy to lift, so Hoffman dialed 911 and handed the phone to Henry so that she could give the operator her address. Henry told Hoffman to run across the street as the ambulance arrived. Hoffman did not know if Henry was not thinking clearly, but " she was in a panic about getting in trouble the whole time."

         State Farm's Policy

         Under Henry's mother's policy, State Farm agreed to defend and indemnify its insured if suit is brought " for damages because of bodily injury ... to which this coverage applies, caused by an occurrence." [7] The policy defines an " occurrence" as " an accident, including exposure to conditions, which results in: a. bodily injury ... during the policy period." Coverage, however, is excluded for bodily injury when it is " either expected or intended by the insured; or ... which is the result of willful and malicious acts of the insured."

         State Farm's Motion ...


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