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Suppose that Tom kills his housemate Bob. He claims it was an accident but is convicted of first degree murder. The administrator of Bob’s Estate brings a civil lawsuit against Tom for wrongful death, alleging that Tom intentionally killed Bob. The Estate argues that, under the concept of issue preclusion (a/k/a collateral estoppel), Tom’s murder conviction precludes him from claiming in the civil case that the killing was accidental.
Alternatively, imagine that Tom and Bob were the insureds under a homeowner’s insurance policy which contains an exclusion for harm intentionally caused. Bob’s Estate sues the insurance company, alleging that Bob’s death was the result of the negligence, gross negligence or reckless conduct of its insured, Tom. In defense, the insurer argues that Tom’s criminal conviction conclusively establishes that he killed Bob intentionally, not negligently or recklessly, so there is no coverage.
In a third scenario, Bob’s Estate brings the lawsuits described above, but Tom’s criminal conviction is based not on a trial but on his guilty plea.
In all these hypotheticals, the Estate brings civil claims to recover for Bob’s death. And in each, a party to the civil case argues that Tom’s criminal conviction conclusively establishes that the killing was intentional. However, issue preclusion only prevents relitigation of that issue in the first scenario, where the Estate sues Tom who was criminally convicted after a trial. In its case against the homeowner’s insurer, issue preclusion will not apply and the Estate will be allowed to introduce evidence showing the killing was not intentional. And a guilty plea has no preclusive effect. What explains these apparently inconsistent results?
Issue preclusion, generally.
“The doctrine of issue preclusion provides that when an issue has been ‘actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim.’” Jarosz v. Palmer, 436 Mass. 526, 530-31 (2002), quoting Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983), quoting Restatement (Second) of Judgments §27 (1982). For issue preclusion to apply, there must be proof that:
(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication is identical to the issue in the current adjudication; and (4) the issue decided in the prior adjudication was essential to the earlier judgment…. Collateral estoppel should only apply to issues actually litigated. (Internal quotation marks omitted).
Callender v. Suffolk County, 57 Mass. App. Ct. 361, 365 (2003), quoting Green v. Brookline, 53 Mass. App. Ct. 120, 123 (2001) and citing Treglia v. MacDonald, 430 Mass. 237, 241 (1999). See also Pierce v. Morrison Mahoney LLP, 452 Mass. 718, 729-30 (2008); Supeno v. Equity Office Properties Management LLC, 70 Mass. App. Ct. 470, 473-74 (2007).
The Estate’s case against Tom.
Tom’s criminal conviction will estop him in the civil case from denying that his conduct towards Bob was intentional. It is well established that, “a party to a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to preclude the criminal defendant from relitigating an issue decided in the criminal prosecution.” Jones v. Maloney, 74 Mass. App. Ct. 745, 748 (2009), quoting Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742 (1985). Thus, “[a] finding of guilt by trial is conclusive of the same factual issues in any later civil litigation.” Costa v. Fall River Housing Authority, 71 Mass. App. Ct. 269, 283 (2008). See also FSL Assoc., Inc. v. Goldberg, 87 Mass. App. Ct. 1117, 2015 WL 1945472, *2 (5/1/15) (unpublished Rule 1:28 decision); Roux v. Sadeghi, 83 Mass. App. Ct. 1134, 2013 WL 2395165, *2 (6/4/13) (unpublished Rule 1:28 decision); Restatement (second) of Judgments, §85(2).
The Aetna case concerned an insurer who filed suit against an insured who had pled guilty to arson charges, in order to recover proceeds of a fire policy paid to the insured. Id. at 738. The Court noted that the plaintiff insurer could not have joined the criminal prosecution, so “cannot properly be charged with sitting back and avoiding the costs of participation in on-going litigation, and then reaping a benefit from the resulting judgment.” Id. at 745 (further citations omitted). The Court also noted that “in light of the criminal sanctions that he faced, [the insured] had every incentive to defend the prosecution vigorously … and to take an appeal, which he did.” Id.
Where a defendant, like Tom, is collaterally estopped in a civil case from relitigating the issues decided in his criminal prosecution, it is proper for the trial judge to grant summary judgment in favor of the plaintiff. Fidelity Management & Research Co. v. Ostrander, 40 Mass. App. Ct. 195 (1996). In Fidelity, an investment firm sued a former employee to compel the employee to disgorge profits from an illegal investment she made while employed by the firm. 40 Mass. App. Ct. 195, 196 (1996). Count I of the investment firm’s complaint alleged that the employee violated her common law fiduciary duty of loyalty to the investment firm, and Counts II and III alleged violations of the Investment Company Act (ICA). Id. After the employee was convicted, the employer filed a motion for partial summary judgment on Counts I, II and III. Id. at 196-7.
The civil trial judge granted partial summary judgment on Count I (breach of fiduciary duty), holding that the employee was collaterally estopped from relitigating the facts which were proved at her criminal trial, and ruled that there was no need to decide counts II and III (violations of the ICA) because they were duplicative of count I. Fidelity, 40 Mass. App. Ct. at 197. The employee appealed the summary judgment ruling. Id. at 198.
Affirming, the Appeals Court restated the rule outlined in Aetna and found that it was appropriate to apply collateral estoppel because the employee, “was convicted of a crime that was directly related to the controversy in issue.” Fidelity, 40 Mass. App. Ct. at 199. The Appeals Court noted that the investment firm could not have joined the criminal prosecution of the employee, that the employee had every incentive to vigorously defend her prosecution, and that the employee had appealed her conviction. Id.
Like the employee in Fidelity, Tom was convicted of offenses, “directly related to the controversy in issue” in the civil matter. In order to find Tom guilty of first degree murder, the jury in his criminal trial had to find, among other things, that he intentionally assaulted Bob. Com. v. LaCava, 438 Mass. 708, 718 (2003) (“The nature of malice necessary to a conviction of murder in the first degree is a ‘specific intent to kill’ ”). The Estate’s wrongful death claim alleges that Tom intended to kill Bob. Moreover, Bob’s Estate could not have joined the criminal prosecution of Tom and thus, “cannot properly be charged with sitting back and avoiding the costs of participation in on-going litigation, and then reaping a benefit from the resulting judgment.” Aetna, 395 Mass. at 745. In light of the criminal sanctions he faced, Tom, “had every incentive to defend the prosecution vigorously … and to take an appeal, which he did.” Id. Furthermore, Tom’s intent was actually litigated and determined in his criminal trial, was essential to the criminal judgment, and Tom had ample incentive to defend himself.
Accordingly, issue preclusion will apply and Tom will be precluded in the civil trial from introducing evidence that he killed Bob other than intentionally.[1]
The Estate’s case against the homeowner’s insurer.
In the insurance action, Bob’s Estate sues the insurance company, alleging that Bob’s death was the result of Tom’s negligence, gross negligence or reckless conduct. The insurer argues that Tom’s criminal conviction conclusively establishes that he intentionally killed Bob, and that the Estate is precluded from relitigating the issue of intent.
Despite the facial similarity of the Estate’s action against the insurance company to its action against Tom, issue preclusion will not apply in the insurance case. The critical difference between the two cases is that the party precluded in the wrongful death case (Tom) was a party to the criminal trial, while the insurance company seeks to preclude the Estate, which was not a party to the criminal case.
As noted above, in order for issue preclusion to apply, “the party against whom estoppel is asserted was a party (or in privity with a party) to the prior adjudication….” Callender, 57 Mass. App. Ct. at 365. In the Estate’s case against the insurance company, even assuming that the other requirements for issue preclusion were satisfied, the party against whom estoppel is asserted, the Estate, was not “a party (or in privity with a party) to the prior adjudication.” The decision of the Massachusetts Supreme Judicial Court in Massachusetts Property Insurance Underwriting Assoc. v. Norrington, 395 Mass. 751 (1985), is controlling.
In Norrington, the MPIUA issued a homeowner’s insurance policy to Thomas and Person. That policy excluded coverage for, “bodily injury or property damage … which is expected or intended by the insured.” Person shot and killed Thomas and was convicted of murder in the second degree. Norrington, Thomas’ next of kin, sole heir and administrator of her estate, brought a wrongful death action claiming that Person had negligently, or willfully, wantonly and recklessly, or by gross negligence, shot Thomas. The MPIUA intervened and asserted that there was no coverage because Person had acted intentionally. It invoked issue preclusion based on the criminal conviction to prevent Norrington from relitigating the issue whether Person had intended to shoot and kill Thomas.
The Supreme Judicial Court held that issue preclusion did not apply to Norrington because he had not been a party to the criminal case and had not been adequately represented by any party to that case:
We hold that, although the doctrine of collateral estoppel could be applied to preclude Person from relitigating issues decided in his criminal trial, collateral estoppel cannot be applied so as to preclude Norrington from litigating such issues. Therefore, MPIUA’s motion for summary judgment must be denied.
… [I]n civil litigation between MPIUA and Person, collateral estoppel could be applied to preclude Person from relitigating issues decided in his criminal trial. It does not follow, however, that Norrington’s position is no better than Person’s.
… We assume, without deciding, that, for collateral estoppel purposes, the issue decided by the jury in the criminal case was identical to the issue on which the existence of insurance coverage depends…. We also assume, again without deciding, that, … Person’s conviction constitutes a final judgment for collateral estoppel purposes. Thus, all the requirements for issue preclusion against Person, and the first two requirements for issue preclusion against Norrington, have been met. We conclude, however, that issue preclusion cannot be applied against Norrington, because he was neither a party nor in privity with a party to the criminal case.
… At Person’s criminal trial, Person in no sense represented the interests of Norrington (or of Thomas, with whom Norrington was in privity). “[I]t creates no privity between two parties that, as litigants in two different suits, they happen to be interested in proving or disproving the same facts.” Sturbridge v. Franklin, 160 Mass. 149, 151, 35 N.E. 669 (1893). Nor did the prosecution represent Norrington’s interests. Furthermore, Norrington had no opportunity to participate in the criminal case. See McCarthy v. Daggett, 344 Mass. 577, 580, 183 N.E.2d 502 (1962).
Clearly, then, Norrington should not be precluded from attempting to show in his wrongful death action against Person that Person did not expect or intend the shooting and the resultant death….
395 Mass. at 753-55. (Emphasis added).
The Restatement Illustration cited by the Court states:
D inflicts a blow on X as a result of which X dies. D is convicted of intentional homicide. P, administrator of X’s estate, brings an action against D for wrongful death, alleging D’s act was negligent. I had previously issued a policy of liability insurance to D, insuring liability for D’s negligent acts but excluding intentional acts. In P’s action against D, P is not precluded by the criminal conviction from showing that D’s act was negligent rather than intentional. …
Restatement (Second) of Judgments § 85 illustration 10 (1982).
The Norrington Court noted that its ruling did not give the crime victim (represented by Norrington) a greater right to indemnity than the insured party, Person, and was not unfair to the insurer:
Neither Norrington nor Person has a right to indemnity if Person expected or intended Thomas’s injury. But that does not mean that, because MPIUA could invoke issue preclusion against Person, it can also invoke issue preclusion against Norrington…. Allowing the application of issue preclusion against the insured, but not against the injured person, does no violence to the substantive principle that an injured party succeeds only to the insured’s rights against the insurer. In the criminal case, Person had his day in court. Norrington, however, has had no opportunity to litigate the question whether Person expected or intended to shoot Thomas. Fairness requires that he be given that opportunity. By not applying issue preclusion to Norrington, we place no undue burden on MPIUA. MPIUA has not previously been required to litigate the critical coverage question. It seeks only to enjoy the benefit of a finding in a case to which it was not a party.
Id. at 756.
Other Massachusetts cases have followed Norrington, holding that a third party suing a criminal’s insurer is not subject to issue preclusion based on the criminal conviction. In Bourque v. Cape Southport Assoc., LLC, 60 Mass. App. Ct. 271, 275 (2004), the Court cited Norrington for the proposition that the, “finding in a criminal case that the insured intended to cause the victim’s death did not preclude a nonparty’s right to prove in a later coverage action that the insured did not intend the victim’s death.” In Worcester Ins. Co. v. Fells Acre Day School, Inc., 408 Mass. 393, 401 n.9 (1990), the Court stated in a footnote, “although under Norrington, the tort plaintiffs are not precluded from relitigating the tort defendant’s ability to form an intent to injure….” (Emphasis in original). And the Court of Appeals for the First Circuit, in Kowalski v. Gagne, 914 F.2d 299, 304 n. 4 (1st Cir. 1990), recognized that different issues are raised by an attempt to use a defendant insured’s criminal conviction to estop the victim than are raised by an attempt to estop the insured. See also Illinois Farmers Ins. Co. v. Reed, 662 N.W.2d 529 (Minn. 2003) (citing and following Norrington); 25 No. 13 Ins. Litig. Rep. 380, “Daycare Operator’s Conviction Did Not Bar Assaulted Child’s Parent’s From Litigating Applicability of Policy’s Intentional Acts Exclusion” (2003).
Accordingly, while Tom’s conviction precludes him from relitigating the issue of intent, it will not preclude Bob’s Estate from showing, in its civil case against the insurer, that Tom did not kill Bob intentionally.
What if Tom’s conviction were based on a guilty plea?
A guilty plea cannot give rise to issue preclusion / collateral estoppel. Metropolitan Property and Casualty Ins. Co. v. Morrison, 460 Mass. 352, 364 (2011); Niziolek, 395 Mass. at 747-48. Instead, a guilty plea, “may be offered as evidence of a defendant’s guilt in subsequent civil litigation but is not given preclusive effect.” Morrison, 460 Mass. at 364. See also Niziolek, 395 Mass. at 748. This rule is explained by the fact that no issue is “actually litigated” when a defendant enters a guilty plea. In Niziolek, the Court explained,
Collateral estoppel “can be used only to prevent ‘relitigation of issues actually litigated’ in a prior lawsuit.” Nevada v. United States, 463 U.S. 110, 130 n. 11, 103 S.Ct. 2906, 2918 n. 11, 77 L.Ed.2d 509 (1983), quoting from Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645, 649 n. 5, 58 L.Ed.2d 552 (1979). See also Home Owners Fed. Sav. & Loan Ass’n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455, 238 N.E.2d 55 (1968) (findings may provide basis for collateral estoppel only if “the product of full litigation and careful decision”). When a conviction is entered after a plea of guilty, “no issue [is] ‘actually litigated’ … since [the defendant] decline[s] to contest his guilt in any way.” Haring v. Prosise, 462 U.S. 306, 316, 103 S.Ct. 2368, 2374, 76 L.Ed.2d 595 (1983). Therefore, the doctrine of collateral estoppel does not apply to preclude the former criminal defendant from litigating in subsequent civil litigation issues involved in the criminal proceeding in which he pleaded guilty. See Restatement (Second) of Judgments § 85 comment b (1982); 1B Moore’s Federal Practice par. 0.418[1] (1984); C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice and Procedure § 4474 (1981).
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… It is true … that, before accepting a guilty plea, judges in this Commonwealth must take great pains to ensure that the plea has a basis in fact. Mass.R.Crim.P. 12(c)(5)(A)…. Nevertheless, “the taking of a guilty plea is not the same as an adjudication on the merits after full trial.” Ohio v. Johnson, –––U.S. ––––, 104 S.Ct. 2536, 2541–2542 n. 9, 81 L.Ed.2d 425 (1984)…. While the judge taking the plea must satisfy himself that there is a factual basis for a charge, he need not find that the defendant actually committed the crime to which he is pleading guilty…. Furthermore, because there have been no findings, a conviction after a plea of guilty does not present the possibility of inconsistent factual determinations. For collateral estoppel purposes, those factors justify treating a conviction after a guilty plea differently from a conviction after a trial.
We emphasize that a defendant’s guilty plea is not without consequence in subsequent civil litigation. The defendant’s guilty plea and any other admissions made during the plea-taking colloquy with the judge are admissible as evidence in the civil litigation.
395 Mass. at 747-48. (Emphasis added, footnotes references omitted).
It follows that if Tom’s criminal conviction resulted from a guilty plea, neither he (in the Estate’s action against him) nor the Estate (in its case against the insurer) will be precluded from relitigating the issue of Tom’s intent.
[1] The result would, of course, be different if the crime of which Tom was convicted did not require proof of his intent to harm Bob (e.g. a conviction of assault and battery with a dangerous weapon, which requires only that the defendant intentionally and unjustifiably use force, however slight, upon the person of another by means of an instrumentality capable of causing bodily injury, not an intent to cause injury). In such a situation, there would be no identity of the issues in the criminal and civil cases and issue preclusion would not apply.
