Oddsen v. Henry

• Decision Date: 16 March 2016
• Docket Number: No. 2015AP765.,2015AP765.
• Parties: 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, Defendants.
• Court: Wisconsin Court of Appeals

368 Wis.2d 318

878 N.W.2d 720

2016 WI App 30

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, Defendants.

No. 2015AP765.

Court of Appeals of Wisconsin.

Oral Argument Jan. 26, 2016.

Opinion Filed March 16, 2016.

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.

NEUBAUER

, C.J.

¶ 1 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.

¶ 2 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.

¶ 3 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

¶ 4 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.

¶ 5 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.

¶ 6 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

¶ 7 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

¶ 8 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.

¶ 9 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.

¶ 10 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."

¶ 11 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.

¶ 12 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

¶ 13 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...