Kowalski v. Gagne

• Citation: 914 F.2d 299
• Decision Date: 01 August 1990
• Docket Number: No. 90-1134,90-1134
• Parties: 31 Fed. R. Evid. Serv. 434 Linda KOWALSKI, a/k/a Linda Larochelle, etc., Plaintiff, Appellee, v. Richard J. GAGNE, Defendant, Appellant. AETNA LIFE AND CASUALTY COMPANY, Plaintiff in Intervention, Appellee, v. Richard Joseph GAGNE and Linda Kowalski, A/K/A Linda Larochelle as the Administratrix of the Estate of Robert John Kowalski, Defendants in Intervention, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 299

914 F.2d 299

31 Fed. R. Evid. Serv. 434

Linda KOWALSKI, a/k/a Linda Larochelle, etc., Plaintiff, Appellee, v. Richard J. GAGNE, Defendant, Appellant.

AETNA LIFE AND CASUALTY COMPANY, Plaintiff in Intervention, Appellee, v. Richard Joseph GAGNE and Linda Kowalski, A/K/A Linda

Larochelle as the Administratrix of the Estate of

Robert John Kowalski, Defendants in

Intervention, Appellees.

No. 90-1134.

United States Court of Appeals First Circuit.

Heard Aug. 1, 1990.

Decided Sept. 14, 1990.

Daniel M. Wrenn, with whom Milton, Laurence & Dixon, Worcester, Mass., and William K. Danaher, Jr., Springfield, Mass., were on brief, for defendant, appellant.

Charles E. Dibble, Contoocook, N.H., for plaintiff, appellee Linda Kowalski.

John P. Graceffa, with whom Gallagher & Gallagher, P.C., Boston, Mass., was on brief, for plaintiff in intervention, appellee Aetna Life and Cas. Co.

Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

BOWNES, Senior Circuit Judge.

This appeal arises out of a diversity suit brought by plaintiff Linda Kowalski against defendant Richard Gagne, seeking damages under the Massachusetts wrongful death statute for the fatal shooting of plaintiff's husband by defendant. The district court entered judgment on a jury verdict awarding $45,000 to the plaintiff, and defendant now appeals. For the reasons that follow, we affirm.

I. BACKGROUND

Richard Gagne shot and killed Robert Kowalski at Gagne's Pharmacy in Holyoke, Massachusetts on the night of October 29, 1970. The precise circumstances of the shooting are unknown. Gagne and Kowalski were both pharmacists and knew each other professionally and socially. There was evidence that Kowalski had gone to Gagne's Pharmacy after closing hour to talk to the defendant about obtaining employment. Gagne disputed this account, asserting instead that he had surprised an armed intruder in the darkened store as he was closing for the night and shot the intruder in self-defense, not knowing it was Kowalski.

In February 1973, Gagne was tried and convicted of second degree murder for Kowalski's death. Linda Kowalski, the victim's wife, then initiated a civil suit against Gagne seeking damages under the Massachusetts wrongful death statute, Mass.Gen.L. ch. 229, Sec. 2. This suit was dismissed in 1979 for failure to prosecute. The plaintiff subsequently settled a legal malpractice claim against her attorneys for $120,000.

In May 1987, the plaintiff filed a second wrongful death action against the defendant, this time for the benefit of her two children. In response to plaintiff's motion, the district court granted partial summary judgment for the plaintiff, holding that the defendant's murder conviction collaterally estopped him from contesting his liability under the wrongful death statute. The court also granted summary judgment for the intervening plaintiff, Aetna Life and Casualty Company, which had insured defendant at the time of the killing. The court ruled that the Aetna insurance policy did not cover Gagne's liability for the injuries he had caused the decedent. There was a clause in the policy excluding coverage for intentional acts by the insured. The court held that defendant's murder conviction collaterally estopped him from denying that his shooting of decedent was an intentional act within the meaning of the insurance exclusion.

Following these grants of summary judgment, the question of damages was tried to a jury under the Massachusetts wrongful death statute. Applying the 1970 version of the statute, which provided only for punitive damages and which set a damages ceiling of $50,000, the jury awarded $45,000 to the plaintiff. ¹ Defendant now appeals, raising a number of legal and evidentiary challenges. We consider each of these challenges in turn.

II. MALPRACTICE SETTLEMENT

Defendant first argues that the plaintiff's $120,000 legal malpractice settlement should be used as an offset against the wrongful death statute's $50,000 damages ceiling. According to defendant's calculations, $87,600 of the settlement amount is attributable to interest paid as a result of the delay caused by the law firm's negligent failure to prosecute. Defendant contends that the remaining $32,400 of the settlement constitutes a payment of principal and should be offset against the $50,000 statutory damages ceiling, leaving a maximum of $17,600 that the jury was entitled to award the plaintiff in her action against the defendant.

The Massachusetts wrongful death statute in effect at the time of the shooting provided for damages "to be assessed with reference to the degree of his [the defendant's ] culpability." Mass.Gen.Laws Ann. ch. 229, Sec. 2, at 395 (West 1985) (Historical Note). The statute thus was punitive rather than compensatory in nature. See, e.g., Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766, 768-69 (1940) ("Due weight must be given to the penal nature of our death statute."), overruled on other grounds, Sorensen v. Sorensen, 369 Mass. 350, 339 N.E.2d 907 (1975); O'Connor v. Benson Coal Co., 301 Mass. 145, 16 N.E.2d 636, 637 (1938); Macchiaroli v. Howell, 294 Mass. 144, 146, 200 N.E. 905 (1936); Porter v. Sorell, 280 Mass. 457, 461-62, 182 N.E. 837 (1932). Because of the punitive nature of the statute, the money that the plaintiff was able to obtain in her legal malpractice action is irrelevant to the amount of damages that may properly be assessed against the defendant. See Arnold v. Jacobs, 316 Mass. 81, 54 N.E.2d 922, 923 (1944) (The wrongful death statute "does not limit the amount that can be collected from a number of wrongdoers for one death.... [A]s in the criminal law, each wrongdoer may be made to suffer the maximum penalty, no matter how many are guilty."). The defendant was not punished in the slightest by the law firm's payment of $120,000. To allow the malpractice settlement to reduce defendant's damages burden would defeat the punitive purposes of the statute. Accordingly, we reject defendant's offset argument. ²

III. COLLATERAL ESTOPPEL

Defendant next challenges the district court's application of collateral estoppel principles as the basis for partial summary judgment for the plaintiff on the question of wrongful death liability and for full summary judgment for intervenor Aetna Casualty and Life Company on the applicability of the "intentional act" exclusion provision in defendant's insurance policy. The district court based both applications of collateral estoppel on defendant's state conviction for second degree murder.

Because our jurisdiction rests on diversity and because the case relied on by the parties invoking estoppel was decided by a Massachusetts court, we apply Massachusetts law on collateral estoppel in reviewing the lower court's actions. See Lynch v. Merrell-National Laboratories, 830 F.2d 1190, 1192 (1st Cir.1987). Under Massachusetts law, "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." Aetna Casualty and Surety Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356, 1360 (1985). To invoke collateral estoppel, Massachusetts requires that the issue have been actually litigated and determined by a valid and final judgment, that the determination be essential to the judgment, and that the estopped party have had a full and fair opportunity to litigate the issue. See, e.g., Martin v. Ring, 401 Mass. 59, 514 N.E.2d 663, 664 (1987); Massachusetts Property Ins. Underwriting Ass'n v. Norrington, 395 Mass. 751, 481 N.E.2d 1364, 1366 (1985); Niziolek, 481 N.E.2d at 1363; see also Cinelli v. Revere, 820 F.2d 474, 479 (1st Cir.1987), cert. denied, 485 U.S. 1037, 108 S.Ct. 1600, 99 L.Ed.2d 915 (1988). Having set forth these general principles, we examine the two invocations of collateral estoppel challenged by defendant on appeal.

A. Wrongful Death Liability

The plaintiff's complaint alleged two alternative grounds for liability under the Massachusetts wrongful death statute: (1) that the defendant, "by a willful, wanton or reckless act, caused the death of the decedent under such circumstances that the decedent could have recovered damages for personal injuries if his death had not resulted," and (2) that the defendant, "by his negligence, caused the death of the decedent without justification while the decedent was in the exercise of due care and lawfully upon the premises at 67 Cabot Street, Holyoke, Massachusetts." In granting the plaintiff's motion for summary judgment on the question of liability, the district court held that defendant's criminal conviction for second degree murder collaterally estopped him from contesting the willful, wanton or reckless nature of his conduct in shooting the decedent. Consequently, the court ruled that the defendant was estopped from disputing his liability under the first wrongful death ground alleged in plaintiff's complaint. Defendant challenges this ruling on appeal, contending that the issues necessarily decided by the criminal jury in convicting him of second degree murder were not identical, for collateral estoppel purposes, with the issue of whether his conduct was willful, wanton or reckless under the Massachusetts wrongful death statute.

The deficiencies in defendant's argument quickly become apparent when the elements of wrongful death liability are compared with those of second degree murder. In the context of a wrongful death action, "wilful conduct has been described as action intended to do harm, while conduct is wanton or reckless when 'in the face of a known or obvious risk [one] intentionally persist[s] in conduct involving a high degree of probability that substantial harm would result to another.' " Gage v. Westfield, 26 Mass.App.Ct. 681, 532 N.E.2d 62, 68 (1988) (quoting Desmond v. Boston Elevated Ry., 319 Mass. 13, 16, 64 N.E.2d 357 (1946)), review denied, 404 Mass. 1103,...