Travelers Indemnity Company v. Walburn, Civ. A. No. 74-41.

• Decision Date: 27 June 1974
• Docket Number: Civ. A. No. 74-41.
• Citation: 378 F. Supp. 860
• Parties: The TRAVELERS INDEMNITY COMPANY, Plaintiff, v. James R. WALBURN and Earl M. Nalls, Jr., Individually and as Administrator of the Estate of John Thomas Nalls, II, Deceased, Defendants.
• Court: U.S. District Court — District of Columbia

378 F. Supp. 860

The TRAVELERS INDEMNITY COMPANY, Plaintiff, v. James R. WALBURN and Earl M. Nalls, Jr., Individually and as Administrator of the Estate of John Thomas Nalls, II, Deceased, Defendants.

Civ. A. No. 74-41.

United States District Court, District of Columbia.

June 27, 1974.

Richard W. Boone, Washington, D. C., for plaintiff.

John G. Gill, Jr., Rockville, Md., for defendant Walburn.

John L. Burke, Jr., Washington, D. C., for defendant estate of John Thomas Nalls, II.

MEMORANDUM-ORDER

GASCH, District Judge.

This matter is before the Court on plaintiff's motion for summary judgment and defendants' opposition thereto. Plaintiff, The Travelers Indemnity Company (hereinafter referred to as Travelers), seeks a declaratory judgment pursuant to 28 U.S.C. § 2201 et seq. that it is not obligated to defend certain claims or indemnify against any liability arising out of those claims pending against Mr. James R. Walburn Walburn.

I. FACTUAL BACKGROUND.

The tragic events that gave rise to this litigation occurred in the Fall of 1971. On the night of September 17, 1971, Walburn picked up his shotgun and walked outside his home at 3606 Porter Street, N. W., in the District of Columbia. What followed was the subject of a criminal trial in which Walburn was convicted by jury verdict of second degree murder for the killing of John T. Nalls, II "Corky" Nalls.

The transcript of that trial,¹ before Judge Aubrey Robinson of this Court, reveals the following facts. Walburn was at home that night when a visitor observed that someone in a white shirt was looking into the yard of the Walburn home.² After checking and finding no one, Mr. Walburn went to the garage and picked up his shotgun.³ Again, finding no one present, Walburn came back into the house but then stepped out onto his front porch with the shotgun loosely held in his hand.⁴ At this time Mr. Walburn saw "Corky" Nalls. There was testimony that Nalls and Walburn were not on friendly terms due to alleged sexual improprieties taken by Nalls with Walburn's daughter. What occurred after Mr. Walburn, still holding the shotgun, saw Nalls near his house is described in Walburn's own words as follows:

Well, as soon as I started to go towards the edge of the porch and stood up I saw this figure out of the corner of my eye, coming up from behind the stucco parapet wall of my neighbor's adjoining house on the east. He was crouched over and came up to my steps where he came into view. He looked up and he hollered "Yeah, it's me, Walburn. I am going to get you. I am going to kill you you god damned son-of-a-bitch," and as soon as I heard this maniac, that tried to kill me before, I thought he is going to kill me. I must get away from him. So there was a brick pillar in front of the porch and I tried to run overand sic get behind it and I tried. I got behind it but then I heard a tremendous explosion and the last thing I knew until I woke up at 6:00 o'clock the next morning was that.⁵

The tremendous explosion described by Mr. Walburn later proved to be the discharge of Walburn's 16-gauge shotgun. The shotgun blast struck "Corky" Nalls in the neck killing him instantly. Notwithstanding the fact that Mr. Walburn testified he had no knowledge of the events immediately subsequent to the shooting, there was uncontradicted testimony from Victor Garcia, a friend of Walburn's son and who was present before and after the shooting, that Walburn returned to the house, put the shotgun away and

said he was sorry and, you know, and that — then that he loved everyone, and that the boy was driving him out, driving him bats or something like that and he put on his clothes and he got a drink and went out back.⁶

On September 8, 1972, the jury found Walburn guilty of murder in the second degree in violation of 22 D.C.Code § 2403 (1967 ed.). That verdict was affirmed on appeal; James Walburn was incarcerated on February 4, 1974, and is currently in prison.

As a consequence of this killing, Mr. Earl M. Nalls, Jr., the brother and personal representative of "Corky" Nalls, instituted a civil tort action against James Walburn. In that suit, Civil Action No. 1843-72, now pending before this Court, Earl Nalls seeks damages for the "deliberate, wrongful, and negligent action of the defendant Walburn, in causing the death of the decedent "Corky" Nalls.⁷

Mr. Walburn has asked Travelers to defend him in the pending wrongful death action pursuant to a homeowners policy that Mr. Walburn had with Travelers.⁸ Travelers initially agreed to defend that action with a reservation of rights.

Upon further evaluation of its policy with Mr. Walburn, Travelers determined that its policy did not encompass a death such as occurred in this instance. In its policy of insurance with Mr. Walburn, Travelers agreed to pay on behalf of its insured

All sums which Insured shall become legally obligated to pay as damages because of bodily injury . . . to which this section applies, caused by an occurrence. (Emphasis added.)

It is the contention of Travelers that the killing of Mr. Nalls was not such an occurrence as would obligate the insurer under the plain terms of the policy. "Occurrence" is defined in the policy as

an accident . . . which results, during the policy term, in bodily injury neither expected nor intended from the standpoint of the Insured. (Emphasis added.)

Travelers has sought a declaratory judgment in this Court to determine the extent of Travelers' obligations to Walburn under this policy of insurance. The crucial and dispositive question for this Court to consider, therefore, is whether the killing of "Corky" Nalls was an accident "neither expected nor intended from the standpoint of the Insured." To reach this ultimate question, the Court must first address a fairly novel legal question in this jurisdiction concerning the applicability of collateral estoppel to the factual pattern of the instant case.

II. COLLATERAL ESTOPPEL.

It is the contention of the plaintiff that there are no genuine issues of material fact respecting the expectation or intent of Mr. Walburn in his shooting of "Corky" Nalls. This argument is grounded upon the theory that that issue was presented to the jury in Mr. Walburn's criminal trial and squarely decided by the jury when it found James Walburn guilty of second degree murder. Since the jury decided any question of intent or expectation against Mr. Walburn, Travelers argues, in this and any subsequent civil action Mr. Walburn is collaterally estopped from denying that he expected or intended the death of Nalls from his actions.

In past years many courts followed the rule that a judgment in a criminal proceeding was not admissible to establish any fact decided in a criminal trial.⁹ However, that wall of exclusion has slowly but steadily been eroded in many varying factual contexts.¹⁰ There are now a great number of jurisdictions that hold that a criminal conviction can indeed preclude litigation of the same issue in a civil suit. E. g., Breeland v. Security Insurance Co. of New Haven, Conn., 421 F.2d 918 (5th Cir. 1969); Bressan Export-Import Company v. Conlew, 346 F.Supp. 683 (E.D.Pa.1972); United States v. Fabric Garment Company, 366 F.2d 530 (2d Cir. 1966); Janney v. Arlan's Dept. Store, 247 F.Supp. 306 (W.D.Va.1965); Newman v. Larsen, 225 Cal.App.2d 22, 36 Cal.Rptr. 883 (1964); Travelers Ins. Co. v. Thompson, 281 Minn. 547, 163 N.W.2d 289, appeal dismissed and cert. denied 395 U.S. 161, 89 S.Ct. 1647, 23 L.Ed.2d 175 (1969); Taylor v. Taylor, 257 N.C. 130, 125 S.E. 2d 373 (1962); Eagle, Star and British Dominions Insurance Company v. Heller, 149 Va. 82, 140 S.E. 314, 57 A.L.R. 490 (1927); see Local 167 of International Brotherhood of Teamsters v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L. Ed. 804 (1934); Stagecrafters' Club, Inc. v. District of Columbia Division of American Legion, 111 F.Supp. 127 (D. D.C.1953). The fact that the parties in the civil action are not the same as those in the criminal conviction has been held to be no bar to collateral estoppel. See, e. g., Breeland v. Security Insurance Co. of New Haven, Conn., supra; Bressan Export-Import Company v. Conlew, supra, Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965).

Although the trend has clearly been to admit the criminal conviction in the subsequent civil action, the courts are in dispute as to what weight the conviction should be afforded in the civil action. The cases can be divided into two major categories in this regard. First, some courts hold that the judgment is received as conclusive evidence of the facts on which it was based.¹¹ The second group holds that the conviction is only prima facie evidence of the facts on which it was based and thus is rebuttable.¹² Generally, where the court admits the criminal conviction as conclusive evidence of the facts upon which it was based, the facts often involve a convicted criminal seeking to avail himself of rights arising from the crime for which he has been convicted, e. g., where one convicted of arson seeks to collect on a fire insurance policy.¹³

Although this is not a case where the convicted criminal seeks directly to benefit from his unlawful deeds, the Court does believe that this is a case in which the evidence of the criminal conviction can be admitted as conclusive proof of Mr. Walburn's expectations or intent in regard to the killing on September 17, 1971, if it can be shown that the exact same issue in this case, i. e., whether Walburn expected or intended to injure "Corky" Nalls, was clearly decided in the prior criminal trial. Whether the jury in the criminal trial did make a clear finding in this connection will be discussed, infra. For present purposes it is necessary to set forth the policy on this subject to illustrate the reason the Court feels the evidence can be admitted as conclusive thus making summary judgment appropriate and precluding the necessity of trial.

The only case the Court has been able to find...