JOSHUA ODDSEN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JASON THOMAS ODDSEN, CAROLYN ODDSEN AND MARK ODDSEN, PLAINTIFFS-APPELLANTS,
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
Argument January 26, 2016
opinion is subject to further editing and modification. The
final version will be published in bound volume of the
from an order of the circuit court for Waukesha County:
PATRICK C. HAUGHNEY, Judge. Cir. Ct. No. 2013CV282.
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.
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.
Neubauer, C.J., Reilly, P.J., and Hagedorn, J. REILLY, P.J.
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.
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.
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.
Allegations of the Complaint
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."  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.
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.
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." 
Farm Accepts Henry's Tender of Defense Under a
Reservation of Rights
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.
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.
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.
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. 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."
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
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. 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
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."
February 2, Oddsen consumed methadone, oxycodone, alprazolam,
and heroin. 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." 
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.
Written Statement to Police
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."
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."  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."
Farm's Motion ...