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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bearden v. State Farm Fire & Casualty Company (4/26/2013) sp-6775
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KENT BEARDEN, )
) Supreme Court No. S-14345
Appellant, )
) Superior Court No. 3AN-10-08579 CI
v. )
) O P I N I O N
STATE FARM FIRE & )
CASUALTY COMPANY, ) No. 6775 - April 26, 2013
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Eric A. Aarseth, Judge.
Appearances: Kenneth Jacobus, P.C., Anchorage, for
Appellant. Kimberlee A. Colbo, Hughes, Gorski, Seedorf,
Odsen & Tervooren, LLC, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Carpeneti, Winfree, and
Stowers, Justices. [Maassen and Bolger, Justices, not
participating.]
STOWERS, Justice.
I. INTRODUCTION
The question in this appeal is whether a defendant who pleads no contest
to disorderly conduct in a criminal action can be collaterally estopped from relitigating
----------------------- Page 2-----------------------
the elements of that crime in a related civil declaratory judgment action regarding
insurance coverage, thereby precluding coverage.
Kent Bearden pleaded no contest to disorderly conduct for punching Paul
Rasmussen during a physical altercation. Rasmussen subsequently filed a civil complaint
against Bearden, and Bearden tendered the lawsuit to State Farm Insurance Company to
defend and indemnify him under his homeowners insurance policy. State Farm sought
declaratory relief and moved for summary judgment on the ground that Bearden's
conduct could not be considered an "accident" within the meaning of the insurance
policy because his no-contest plea collaterally estopped him from relitigating the issues
of mens rea and self-defense. The superior court granted the motion. We affirm.
II. FACTS AND PROCEEDINGS
On October 7, 2009, Bearden and Rasmussen were involved in a physical
altercation at Denali Car Rental, where Rasmussen was employed. Bearden's wife,
Linda, has two children, Lynette and Gary Craig, who together own Denali Car Rental.
Bearden did not get along with the Craigs, and Lynette had asked her mother not to bring
Bearden on the premises. Bearden also did not get along with Rasmussen; the two had
previously been involved in a few nonviolent confrontations.
The October 7 altercation ensued when Bearden and his wife drove to
Denali Car Rental to drop off medication for Gary Craig. Upon their arrival, Bearden
exited the car to give Lynette Craig the medication, briefly crossing paths with
Rasmussen before he got back in the car. Rasmussen, standing in the front doorway
while Bearden was still seated, told Bearden he "would like to kick [his] ass." Bearden
got out of the car, walked over to Rasmussen, and punched him in the face. Rasmussen
then placed Bearden in a headlock, and Bearden continued to try to hit Rasmussen. The
confrontation was recorded on the company's security camera and viewed by two police
officers who responded to the incident.
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Bearden was charged with assault and use of reckless force or violence in
violation of Anchorage Municipal Code (AMC) 8.10.010(B).1 Bearden ultimately
pleaded no contest to "Disorderly Conduct" in violation of AMC 8.30.120(A)(6), which
makes it unlawful for any person to "[k]nowingly challenge another to fight, or engage
in fighting other than in self-defense." This crime is punishable by "not more than
$2,000.00 or imprisonment for not more than six months, or both such fine and
imprisonment."2 Bearden was sentenced to 90 days in jail with 85 days suspended and
fined $1000 with $500 suspended.
In May 2010 Rasmussen filed a civil complaint against the Beardens for
injuries allegedly sustained during the altercation. The Beardens sought coverage under
their State Farm homeowners insurance policy in effect at the time of the altercation.
The policy provides coverage "[i]f a claim is made or a suit is brought against an insured
for damages because of bodily injury or property damage to which this coverage applies,
caused by an occurrence . . . ." (Emphasis omitted.) It defines "occurrence" in relevant
part as "an accident . . . which results in bodily injury . . . during the policy period." The
policy also expressly excludes certain conduct:
1. Coverage L [Personal Liability] and Coverage M
[Medical Payments To Others] do not apply to:
a. bodily injury or property damage:
(1) which is either expected or
intended by the insured; or
(2) which is the result of willful and
malicious acts of the insured.
1 Municipality of Anchorage v. Bearden , No. 3AN-09-12228 CR (Alaska
Dist. Ct., Feb. 2, 2010).
2 AMC 8.30.120(C) (2003).
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----------------------- Page 4-----------------------
(Emphasis omitted.)
State Farm filed a complaint for declaratory judgment, arguing that the
policy did not provide coverage for Bearden because: (1) the altercation was not an
"accident" and therefore not an "occurrence" covered by the policy; and (2) Bearden's
no-contest plea established that, as a matter of law, he was engaged in "expected" or
"intended" conduct that was "the result of [Bearden's] willful and malicious acts"
excluded by the policy pursuant to section 1.a.(1)-(2). The Beardens answered,
requesting that the court declare that the policy covered the altercation and that State
Farm was required to defend and indemnify them. State Farm moved for summary
judgment. The Beardens opposed the motion and cross-moved for summary judgment.
Superior Court Judge Eric A. Aarseth held a hearing on the motions for
summary judgment. At the conclusion of the hearing the superior court granted
summary judgment in favor of State Farm, ruling that there was no policy coverage for
Kent Bearden.3 Bearden filed a motion for reconsideration. The court denied the motion
and further explained its reasoning for granting summary judgment in favor of State
Farm:
A conviction for Disorderly Conduct contains a "knowingly"
element. By pleading no contest to this charge, the issue of
Mr. Bearden's mens rea was necessarily decided.
. . .
Because Mr. Bearden is estopped from re-litigating the issue
of mens rea and self-defense, State Farm's Motion for
Summary Judgment as to Kent Bearden was properly
3 State Farm initially argued that Linda Bearden's conduct was also excluded
from policy coverage. However, the parties subsequently stipulated that all claims State
Farm asserted against Linda Bearden were to be dismissed with prejudice, and that State
Farm would provide coverage for her defense against Rasmussen. Her insurance
coverage is not contested in this appeal.
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----------------------- Page 5-----------------------
granted. As a matter of law, Mr. Bearden knowingly entered
into the fight that caused Mr. Rasmussen's bodily injuries and
Mr. Bearden's conduct was not in self-defense. Therefore,
Mr. Bearden's conduct can not be considered an "accident"
or "unanticipated, unforseen, and unexpected" from
Mr. Bearden's perspective.
(Emphasis omitted.)
Final judgment was entered. Bearden appeals.
III. STANDARD OF REVIEW
"We review decisions granting summary judgment de novo and will affirm
them when there are no genuine issues of material fact and the prevailing party is entitled
to judgment as a matter of law."4 "All reasonable inferences of fact are drawn in favor
of the nonmoving party."5 "We also review de novo as a question of law the
interpretation of insurance policy language."6 "The extent to which a civil defendant is
collaterally estopped from denying the essential elements of an underlying crime by a
conviction based on a previous plea of nolo contendere is a question of law."7
IV. DISCUSSION
Bearden argues that State Farm is obligated to defend and indemnify him
in Rasmussen's civil action because he was acting in self-defense and was therefore
covered by the policy. In order to successfully make this claim, Bearden must show that
the superior court incorrectly concluded that he was collaterally estopped from
relitigating the issue of self-defense because of his no-contest plea to disorderly conduct.
4 Se. Alaska Conservation Council v. State, 202 P.3d 1162, 1167 (Alaska
2009) (internal quotation marks omitted).
5 Fejes v. Alaska Ins. Co. , 984 P.2d 519, 522 (Alaska 1999).
6 State Farm Mut. Auto. Ins. Co. v. Houle, 269 P.3d 654, 657 (Alaska 2011).
7 Lamb v. Anderson , 147 P.3d 736, 739 (Alaska 2006).
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Further, in order to qualify for coverage, the altercation between Bearden and Rasmussen
must fall within the parameters of the policy; specifically the incident must be an
"occurrence" as defined by the policy and not excluded by policy exclusions.
A. Bearden's No-Contest Plea Collaterally Estops Him From Re-
Litigating The Essential Elements Of His Disorderly Conduct
Conviction And From Qualifying For Coverage Under His Insurance
Policy.
In Lamb v. Anderson , we set forth a three-part test to determine when a no-
contest plea will collaterally estop a civil defendant from relitigating an issue: "(1) the
prior conviction is for a serious criminal offense; (2) the defendant in fact had a full and
fair hearing; and (3) it is shown that the issue on which the judgment is offered was
necessarily decided in the previous trial."8 Bearden argues that the first and third parts
of the Lamb test are not satisfied and that his hearing was "not fair to the extent that the
plea would subsequently be applied to insurance coverage." Bearden also argues that
"as a general principle, a no contest plea should not be allowed to negate liability
insurance policy coverage in any case." State Farm counters that Bearden's no-contest
plea meets all of the elements of the Lamb test. The superior court agreed with State
Farm, ruling: "Mr. Bearden plead[ed] no contest to a serious offense, he had a full and
fair hearing, and the elements of mens rea and self-defense were necessarily decided.
Therefore, he is estopped from litigating those elements in this case." Applying the
Lamb test, we conclude that the superior court did not err in granting summary judgment
to State Farm.
1. Bearden's prior conviction is for a serious criminal offense.
Anchorage Municipal Code 8.30.120(A)(6) "Disorderly Conduct" makes
it unlawful "for any person to . . . [k]nowingly challenge another to fight, or engage in
8 Id.
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fighting other than in self-defense."9 The superior court concluded that Bearden's
disorderly conduct conviction constitutes a serious offense because it "is not merely a
violation and carries with it a possible sentence of up to 6 months imprisonment. This
potential deprivation of liberty indicates that a conviction for Disorderly Conduct is a
serious offense. "
In Scott v. Robertson, a predecessor to Lamb , we held that a misdemeanor
conviction of operating a motor vehicle while under the influence of intoxicating liquor
or drugs, which carries a maximum penalty of imprisonment of one year and a fine of
$1,000 for the first offense, constitutes a serious crime.10 We defined a serious offense
as one punishable by imprisonment:
The three conditions which we have set forth as prerequisites
to the use of a criminal conviction in a subsequent civil case
arising from the same set of facts are designed to protect the
defendant against the introduction of unduly prejudicial
criminal convictions. We first require that the prior
conviction be for a serious offense in order that the accused
have the motivation to defend himself fully. A driver who
pleads guilty to a minor traffic violation may have decided
merely that the costs of defending outweigh the burden of
having such a conviction on his record. Such a conviction is
not credible evidence of guilty conduct. Generally, any
offense punishable by imprisonment should be considered to
be a serious offense.[11]
9 AMC 8.30.120(A)(6) (2003).
10 583 P.2d 188, 192 (Alaska 1978).
11 Id. (emphasis added, citations omitted). In a subsequent case we concluded
that all felonies are serious offenses regardless of the amount of time the person spends
incarcerated. See Howarth v. State, Pub. Defender Agency, 925 P.2d 1330, 1334-35
(Alaska 1996).
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----------------------- Page 8-----------------------
We also noted in Scott that "[t]he court may consider arguments that in a particular
offense, although technically subject to incarceration, the likelihood of such punishment
is so remote as not to justify its being considered as a serious offense for this purpose."12
Bearden advances several grounds why his conviction was not for a serious
offense. First, Bearden argues that his conviction does not constitute a serious offense
because it is a Class B misdemeanor, and "[a] net $500 fine with 5 days in jail is not a
serious sanction, and is not an indication that Mr. Bearden pleaded to a serious offense."
While not as "serious" as the misdemeanor in Scott, which had a maximum
sentence of one year in prison, disorderly conduct is punishable by up to six months in
prison, and "[g]enerally, any offense punishable by imprisonment should be considered
to be a serious offense."13 Bearden's conviction is not of the type contemplated in Scott
where the "the likelihood of [imprisonment] is so remote" that it should not be
considered a serious offense; Bearden was sentenced to 90 days of incarceration, and he
was actually incarcerated for five days.14 We agree with the superior court that a
conviction that carries with it a possible sentence of up to six months imprisonment is
generally a serious offense.
Bearden also asserts that his disorderly conduct conviction does not meet
the first part of the Lamb test because the actual penalty imposed should determine what
constitutes a serious offense, and he "knew at the time he entered his plea what the
sanction would be." Bearden's argument implies that he did not have the motivation to
defend himself fully since at the time of the no-contest plea he viewed his actual
sanction, rather than the potential sanction, as minor.
12 Scott, 583 P.2d at 192 n.17.
13 Id. at 192; see also AMC 8.30.120(C) (2003).
14 See Scott, 583 P.2d at 192 n.17.
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We rejected a similar argument in Howarth v. State, Public Defender
Agency .15 In that case, Howarth argued his no-contest plea to second-degree sexual
assault was not a "serious offense" within the meaning of Scott because he lacked the
motive to defend against this charge since he would serve no more time in prison for it.16
We disagreed, observing, "[A] defendant convicted of a felony - including a defendant
who goes free after making a salubrious plea bargain - should not be allowed to claim
in court in subsequent litigation that the elements essential to his conviction did not exist.
Allowing such a claim trivializes both the conviction and the criminal process."17
Admittedly Howarth's was an easier case because Howarth pleaded no contest to a
felony rather than to a misdemeanor, but the same analysis applies: The fact that
Bearden's actual time of incarceration was only a fraction of what could have been
imposed should not change his ability to re-litigate the essential elements of the case.18
Such an approach would create a system where collateral estoppel never applies to
15 925 P.2d 1330 (Alaska 1996).
16 Id . at 1331, 1334.
17 Id. at 1334-35.
18 In Moore v. Peak Oilfield Serv. Co., we held that "[d]riving while
intoxicated is a serious criminal offense." 175 P.3d 1278, 1280 (Alaska 2008). We
noted that "Moore was sentenced to ten days of unsuspended jail time for the offense."
Id. at 1280 n.4. At first glance it may appear that we considered the actual time served
by Moore in determining that his crime was a serious offense. However, the statute he
pleaded no contest to, AS 28.35.030(b)(1)(A), states, "the court shall impose a minimum
sentence of imprisonment of . . . not less than 72 consecutive hours . . . ." (Emphasis
added.) Since Moore's sentence was longer than the minimum required, and we held
that driving while intoxicated is a serious criminal offense generally, we did not take into
consideration the actual length of incarceration Moore received.
-9- 6775
----------------------- Page 10-----------------------
defendants who accept plea bargains. We rejected this approach in Howarth as
undesirable as a matter of public policy,19 and we reject it again today.
Finally, Bearden argues that he lacked the requisite motivation to defend
himself fully because he entered his plea "just to make the matter 'go away.' " When
asked if he had anything he would like to say at his sentencing hearing, Bearden
responded, "I guess I - I agree to this. I didn't do any of the things that I've been
charged with, the assault. And I take the plea that I have. It's - if Your Honor will
honor that." In an April 2011 affidavit prepared after the hearing granting summary
judgment to State Farm, Bearden stated:
8. I accepted this offer, and pleaded "no contest" for several
reasons, among them being:
(A) The case would have been very expensive to defend
and take to trial, and I could not afford that expense.
(B) The proposed punishment was a lot less than I would
have received had I been convicted of assault.
(C) These matters were causing a lot of stress between my
wife and I during this period of time, and I wanted this
stress to end for both of us so that we could both get
on with our lives.
9. By accepting this agreement, I did not admit to any of the
allegations of the charge for the purpose of affecting my
insurance policy coverage. In fact, I did not believe that this
disposition of the charge against me would affect any policy
coverage that I might have under the actual facts of [this]
case.
As described above, we adopted the requirement that collateral estoppel
may only be applied to "serious offenses" in order to distinguish cases where a defendant
is fully motivated to defend himself from those cases where a defendant "may have
19 See Howarth, 925 P.2d at 1334.
-10- 6775
----------------------- Page 11-----------------------
decided merely that the costs of defending outweigh the burden of having such a
conviction on his record."20 This approach creates uniformity and prevents us from
having to guess at a defendant's subjective reasons for pleading no contest to a given
offense. Having concluded that the offense Bearden pleaded no contest to was a serious
offense, our caselaw establishes that Bearden was necessarily motivated to defend
himself fully.21
Bearden's affidavit also suggests that he may not have known that his
insurance coverage could be affected by his no-contest plea. Although Bearden does not
argue on appeal that he was not motivated to defend himself fully because he was
unaware of the civil liability consequences of his plea, we take this opportunity to again
remind trial courts, as we did in Lamb , that
[b]efore a no contest plea is accepted in a case involving
serious criminal charges, the record should establish the
defendant's understanding that a no contest plea will result in
a conviction, just as a guilty plea would, and that this
conviction could be used in future cases to establish that the
defendant engaged in the conduct involved in the charged
offense.[22]
20 Scott v. Robertson, 583 P.2d 188, 192 (Alaska 1978).
21 See Wilson v. MacDonald, 168 P.3d 887, 889 (Alaska 2007) (holding that
defendant was "precluded from relitigating any elements of assault in the civil case
because he pled no contest to assault in the criminal case"); Lamb v. Anderson , 147 P.3d
736, 742 (Alaska 2006) (holding that "a conviction based on a no contest plea will
collaterally estop the criminal defendant from denying any element in a subsequent civil
action against him that was necessarily established by the conviction, as long as the prior
conviction was for a serious criminal offense and the defendant in fact had the
opportunity for a full and fair hearing").
22 Lamb , 147 P.3d at 742-43.
-11- 6775
----------------------- Page 12-----------------------
Even if Bearden had alleged any failure on the part of the district court
judge to inform him of the consequences of his plea, the issue would not be ripe for
review in the case before us because, as we established in Wilson v. MacDonald, the
"question of whether a defendant is aware of all of the relevant consequences of his or
her plea is a question as to whether the plea itself was knowing and voluntary."23 It
therefore presents "a question as to the validity of the plea itself" rather than to the
defendant's motivation to defend himself fully, and "should be resolved through a
motion for post-conviction relief or appeal in the criminal case."24 Bearden's alleged
ignorance of the civil liability consequences of his plea is not relevant to our holding that
his conviction was for a serious offense. Bearden should have sought post-conviction
relief regarding his criminal conviction if he believed the judge failed to inform him of
the consequences of his plea.
2. Bearden had a full and fair hearing.
Bearden makes a brief argument about part two of the Lamb test, whether
the defendant had a full and fair hearing. Bearden did not argue in the superior court that
he did not get a full and fair hearing in the criminal case. On appeal he briefly states,
"The hearing was fair as to the entry of the plea, but was not fair to the extent that the
plea would subsequently be applied to insurance coverage." Bearden does not brief this
issue any further.
A criminal proceeding - absent some irregularity - is presumed to be
fair:
The requirement of a full and fair hearing is designed to
prevent the introduction of the prior conviction where there
is substantial question as to its validity. Normally, a criminal
23 168 P.3d at 889.
24 Id.
-12- 6775
----------------------- Page 13-----------------------
conviction, incorporating the high burden of proof on the
state and the stringent safeguards against violations of due
process, should be admissible absent strong showing of
irregularity.[25]
We have suggested that one such irregularity is a lack of representation by counsel,26 but
no such deficiency has been alleged here. And in Lamb , we clarified that, absent such
irregularity, the fair hearing requirement is met even if the criminal conviction was
obtained by a no-contest plea.27 We therefore conclude that Bearden had a full and fair
hearing.
3. The proposition for which Bearden's conviction is offered was
necessarily decided in the criminal hearing.
The third prong of the Lamb test "requires that the proposition for which
the conviction is offered must have necessarily been determined at the previous
proceeding."28 Here, Bearden's conviction is offered for the proposition that he
knowingly engaged in the altercation with Rasmussen and that his actions were not in
self-defense, and that Bearden's actions did not constitute an "accident" within the
meaning of his homeowners insurance policy.
Anchorage Municipal Code 08.30.120(A)(6) makes it unlawful for any
person to "[k]nowingly challenge another to fight, or engage in fighting other than in
self-defense." Bearden argues that the issues of mens rea and self-defense "were not
necessarily decided in the previous proceeding," in part because he "admitted nothing
and denied that he committed any of the offenses charged." State Farm counters that
25 Scott, 583 P.2d at 192.
26 Id.
27 Lamb , 147 P.3d at 744.
28 Id. (citing Scott, 583 P.2d at 192).
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"the issues of self-defense and Bearden's state of mind, i.e., knowingly, were necessarily
decided as part of the no contest plea. The mens rea of disorderly conduct is
'knowingly' and the definition of the crime specifically provides that the fight was 'not
in self defense.' " We agree with State Farm's reasoning.
Bearden also argues that it was unclear what he was charged with because
AMC 08.30.120(A)(6) prohibits two separate offenses, "knowingly challeng[ing] another
to fight," and "fighting other than in self-defense." The judgment simply lists
"AMC 08.30.120(A)(6)," but CourtView29 states online that the charge was "Disorderly
Conduct - Challenge to Fight."30 Bearden maintains that if CourtView is correct, then
he "has pleaded to having violated the first part of the Municipal Code - challenging
another to fight - but not having pleaded to the second part - fighting and not in self-
defense." Therefore, he argues, "it cannot be held as a matter of law that Kent Bearden
pleaded away his right to present a self-defense civil case, and that he pleaded away his
insurance coverage."
We need not consider Bearden's argument that he pleaded no contest only
to the "[k]nowingly challenge another to fight" prong of the ordinance rather than to the
ordinance in its entirety because, even assuming this argument is correct, Bearden would
29 CourtView is the court system's online docketing system. We note that
CourtView is merely a docketing and case management system. The data entered into
CourtView is entered by clerical staff, often after a hearing or after an order or judgment
is issued. It is a judge's order, oral or written, or the judgment that is the official
disposition of a matter. The dispositional entries in CourtView are not the official acts
of a court and cannot be used to contradict the court's official acts.
30 Online Trial Court Record of 3AN-09-12228CR, ALASKA COURT SYSTEM ,
http://www.courtrecords.alaska.gov/eservices/casedetail.page.6?x=dknSUpq2FDmto
ZJr729mx3muV3n3L6zI-u9QIiwFDbU (last visited October 10, 2012).
-14- 6775
----------------------- Page 15-----------------------
still be precluded from arguing that he was acting in self-defense or that his actions were
covered by his homeowners policy.
Bearden could not "knowingly challenge another to fight" and subsequently
claim self-defense in a criminal prosecution. Alaska's self-defense statute,
AS 11.81.330, prohibits a person from relying on self-defense where "the person
claiming self-defense was the initial aggressor."31 In Bangs v. State , we clarified that
"[t]he law of self-defense is designed to afford protection to one who is beset by an
aggressor and confronted by a necessity not of his own making."32 In Bangs , we held
that a defendant was the initial aggressor and could not claim self-defense as a matter of
law, where the defendant armed himself and challenged the victim to physical combat
with the apparent purpose of provoking a response.33 Similarly, here Bearden could not
challenge another to fight and subsequently claim that any aggression or necessity he
confronted in response to his challenge was not of his own making.34 Thus, even if
Bearden subjectively pleaded no contest to the first prong of AMC 08.30.120(A)(6) and
not to the second prong, he still would have been precluded from asserting self-defense
in the criminal matter.
Bearden's homeowners policy also precludes coverage under either of the
ordinance's two prongs. Bearden's policy states that State Farm will defend him "[i]f
a claim is made or a suit brought against an insured for damages because of bodily injury
31 AS 11.81.330(a)(3).
32 608 P.2d 1, 5 (Alaska 1980) (quoting State v. Millett, 273 A.2d 504, 510
(Me. 1971)).
33 Id. at 2, 5.
34 See Dawson v. State, 264 P.3d 851, 857 (Alaska App. 2011) (observing that
the "act of 'challenging' another to fight clearly involves daring or inviting someone else
to engage in mutual fighting").
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or property damage to which this coverage applies, caused by an occurrence."
(Emphasis omitted.) The policy defines "occurrence" in pertinent part as "an accident
. . . which results in . . . bodily injury . . . during the policy period." "Accident" is not
defined by the policy. However, we discussed the meaning of "occurrence" and
"accident" in a State Farm automobile insurance policy in Shaw v. State Farm Mutual
Automobile Insurance Co. :
What counts as an "accident" is not defined by Shaw's
insurance policy. When the language of a policy provides no
guidance in the definition of its terms, we may determine the
policy's meaning by examining case law interpreting similar
provisions. We have previously "defined the term 'accident'
as 'anything that begins to be, that happens, or that is a result
which is not anticipated and is unforeseen and unexpected.' "
Further, we have held that whether an occurrence is
unanticipated, unforeseen, and unexpected is to be
determined from the perspective of the insured.[35]
The act of "knowingly challeng[ing] another to fight," cannot be something
"that begins to be, that happens, or that is a result which is not anticipated and is
unforeseen and unexpected."36 A challenger to a fight cannot fail to anticipate, foresee,
or expect an injury to either the challenger or to the challenger's foe. Indeed, it seems
that by "knowingly challeng[ing] another to fight," a challenger necessarily anticipates,
foresees, or expects some injury on the part of his foe. Thus, even if Bearden pleaded
no contest to "knowingly challeng[ing] another to fight," he is precluded from arguing
that his actions constituted an "accident" within the purview of his policy because this
issue was necessarily decided at his criminal hearing. And, for the reasons explained
35 19 P.3d 588, 590 (Alaska 2001) (quotingFejes v. Alaska Ins. Co., Inc ., 984
P.2d 519, 523 (Alaska 1999) and citing C.P. v. Allstate Ins. Co., 996 P.2d 1216, 1223
(Alaska 2000)).
36 Id. (quoting Fejes , 984 P.2d at 523).
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above, if Bearden's no-contest plea only related to the "fighting other than in self-
defense" prong of AMC 08.30.120(A)(6), his actions are still precluded from coverage.37
4. Public policy does not prevent a no-contest plea from negating
insurance coverage in this case.
Bearden makes several policy arguments that "the application of collateral
estoppel to insurance coverage cases [is] manifestly unfair." These policy arguments
present questions of law. "We apply our independent judgment to questions of law,
adopting the rule of law that is most persuasive in light of precedent, reason, and
policy."38
First, Bearden argues that the subject of loss of insurance coverage is
"virtually never discussed" between a criminal defendant and his criminal defense
attorney and that applying collateral estoppel to an insurance coverage dispute "will
harm the defendant because he unknowingly will lose his insurance coverage when that
was never intended." This argument could be made for any kind of civil case that may
arise from the same events as the criminal case in which a no-contest plea is entered.
Moreover, we addressed this issue in Wilson, where, as explained above, we held that the
question whether a defendant is aware of all of the relevant collateral consequences of
his plea should be resolved through a petition for post-conviction relief or appeal in the
criminal case.39 Absent such a petition and its final resolution in his favor, Bearden's no-
contest plea is not "manifestly unfair" as a matter of law.
37 In his appellate brief Bearden separately argues that the fight was an
"occurrence" within the terms of his homeowners insurance policy. For the reasons
stated herein, we disagree.
38 Lamb v. Anderson , 147 P.3d 736, 739 (Alaska 2006) (internal quotation
marks omitted).
39 See Wilson v. MacDonald, 168 P.3d 887, 889 (Alaska 2007).
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Second, Bearden asserts that "to apply collateral estoppel of the defendant
to insurance coverage cases harms the injured party - a totally innocent party - by
requiring him or her to bear the burden of the loss of the insurance coverage and [loss]
of compensation for the injuries suffered." However, losing insurance coverage does not
mean that the injured party, in this case Rasmussen, cannot sue and recover from the
defendant. It is true that if Rasmussen prevails against Bearden, Bearden may not be
able to satisfy a judgment in favor of Rasmussen (because of a lack of assets), whereas
the insurance company could satisfy the judgment. But even so, this policy argument
presents a question for the legislature, not this court, to answer.
Third, Bearden contends that "[t]he insurance carrier has received a
premium payment to provide coverage for the incident which resulted in the loss" and
"[t]he manner in which the defendant resolves issues of criminal liability resulting from
the incident should be totally irrelevant to insurance coverage." This argument is also
unpersuasive. An insurance policy is a contract between the insurance company and the
insured. This contract sets out the terms under which the insurer will defend and
indemnify the insured. There are specific definitions of coverage and exclusions that
create and fix the circumstances under which an insured will be covered for an
occurrence. If those excluded circumstances constitute knowing criminal conduct and
the insured pleads no contest to criminal charges that are expressly excluded by the
policy terms, the insured's resolution of such criminal charges will necessarily affect
policy coverage. An insured should not be able to take advantage of a no-contest plea
in the criminal setting and then avoid the contractual ramifications of that plea in a civil
setting. We have previously recognized the undesirability of such an approach.40
40 See Howarth v. State, Pub. Defender Agency, 925 P.2d 1330, 1335 (Alaska
1996) ("Allowing such a claim trivializes both the conviction and the criminal process.").
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Lastly, Bearden relies on Allstate Insurance Co. v. Takeda from the U.S.
District Court in Hawai`i41 to argue that case law from other jurisdictions "establishes
that a no contest plea does not automatically negate insurance coverage as a matter of
law." In that case, Takeda pleaded no contest to assault for hitting a man with a pole.42
The man sued Takeda for injuries, and Takeda tendered the defense of that action to
Allstate on the grounds that he had acted in self-defense and was covered by his
insurance policy.43 Allstate sought a declaratory judgment that it was not required to
defend Takeda because Takeda's acts were not an "occurrence" or that coverage was
precluded by the exclusions listed in the policy.44 The court rejected Allstate's argument
and declined to grant summary judgment, noting that under Hawai`i law, a no-contest
plea and a subsequent conviction are nonconclusive evidence of criminal intent that,
without more, cannot negate a claim of self-defense.45 The court thus held that there was
a question of fact as to whether Takeda had acted in self-defense and whether his acts
were covered by the policy.46
Hawai`i's treatment of collateral estoppel differs fundamentally from our
own. Our estoppel doctrine establishes that, where the three-part Lamb test is met, a
defendant is collaterally estopped from relitigating all the essential elements of his
41 243 F. Supp. 2d 1100 (D. Haw. 2003).
42 Id. at 1102.
43 Id.
44 Id. at 1101.
45 Id. at 1107-08 (citing Hawaiian Ins. & Guar. Co. v. Blanco , 804 P.2d 876,
880 (Haw. 1990), overruled on other grounds by Dairy Rd. Partners v. Island Ins. Co.,
992 P.2d 93 (Haw. 2000)).
46 Id.
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conviction, including his state of mind; thus, unlike Hawai`i, we treat a no-contest plea
and a subsequent conviction as conclusive proof of the essential elements of a crime, so
long as the Lamb test is met.47 We are bound by our own well-established precedent, not
by Hawai`i law, and we remain convinced that ours is the more prudent approach.
V. CONCLUSION
Bearden's no contest plea collaterally estops him from relitigating the
essential elements of disorderly conduct. Because this is so, his conduct is not an
"accident" and not an "occurrence" covered by his State Farm homeowners insurance
policy. For these reasons, we AFFIRM the superior court.
47 Lamb v. Anderson , 147 P.3d 736, 744 (Alaska 2006). In Wilson v.
MacDonald , 168 P.3d 887, 888 (Alaska 2007), for example, we held that a man who
pleaded no contest to assault but tried to argue self-defense in the ensuing civil action
was precluded from relitigating any elements of the assault, thereby rejecting a nearly
identical argument as that accepted by the district court in Takeda. See Takeda, 243 F.
Supp. 2d at 1107-08.
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