In the January 13, 2016 issue of Coverage Opinions I discussed Skolnik v. Allied Property and Casualty Ins. Co., No. 1-14-2438 (Ill. Ct. App. Dec. 22, 2015), a case that I believed provided a lesson that could be felt far and wide. Indeed, I would have given the case serious consideration as one of the ten most significant of the year had it been decided in time for my annual hit parade.

Skolnik involved coverage for damages arising out of death caused by methadone intoxication. The decedent was provided methadone by the insured and the insured failed to take action to assist the decedent when she was clearly suffering badly from its effects. The policies at issue contained an exclusion for bodily injury “arising out of the use” of controlled substances, with an exception for “the legitimate use of prescription drugs by a person following the orders of a licensed physician.”

The Illinois appeals court held that, despite the autopsy notation regarding cause of death [methadone intoxication], a genuine issue of material fact existed whether the death was caused solely by methadone ingestion. The complaint alleged that the insured and his parents “negligently, carelessly, and improperly failed to request emergency medical assistance for Johnson within a reasonable period of time after knowing she was physically incapacitated or unconscious or both; and knowing or discovering she ingested or unknowingly consumed methadone or other illegal substances in the Skolnik home.” The court used these allegations to conclude that, at least for purposes of the duty to defend, the controlled substances exclusion did not apply, since the death may not have been caused solely by methadone ingestion.

As I discussed in the January 13th issue, there are a host of exclusions that preclude coverage for injury arising out of some specified bad conduct on the part of an insured: assault and battery, furnishing alcohol, criminal acts, etc. These exclusions are often interpreted broadly on account of being expressed in “arising out of” language. Skolnik demonstrates that a plaintiff may be able to trigger a defense obligation, in a case that would otherwise be subject to a broad “specified conduct exclusion,” by simply alleging (provable or not) that, after the insured committed the excluded conduct, it then failed to summon help for the victim. And such failure was also a cause of the plaintiff’s injuries.

Not long after I discussed the “failure to summon help” issue in Skolnik, along came Oddsen v. Henry, No. 2015AP765 (Wis. Ct. App. Mar. 16, 2016), also involving the issue -- but finding a way to avoid it.

Jason Oddsen died from an overdose of a mixture of heroin, methadone, oxycodone and alprazolam. However, the circumstances that led up to his death were in dispute. One night in 2010, Oddsen went to the home of Christopher Cavanaugh to watch a basketball game with Kyle Walters, Brian Hoffman and Elizabeth Henry. Oddsen, a regular abuser of drugs, consumed a mixture of heroin, methadone, oxycodone and alprazolam. Oddsen began to show signs of having overdosed while staying at the home of Henry’s mother. The time period when Oddsen began to show signs of having overdosed, to when Henry sought emergency assistance, was critical to the determination of coverage under a State Farm condominium policy issued to Henry’s mother.

“[T]here 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.”

More specifically, in an action filed by Oddsen’s Estate, it was alleged 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. 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.’”

The trial court, in an action concerning coverage for the Estate’s suit against Henry, under a State Farm condominium policy, held that no coverage was owed because Henry’s failure to obtain aid was not an accident/occurrence. The court explained: “[A]lthough it may have never been [Henry’s] intent to let Oddsen die, I do find there were certain intentional actions on the part of Henry which contributed to Oddsen’s death, and that includes not calling 911 sooner. A reasonable insured cannot expect that her insurance company would provide coverage while what [Henry] did here was to do nothing over a period of several hours as her friend, who had consumed a large amount of illegal drugs in her presence earlier in the evening, perished before her very eyes.”

The Wisconsin Court of Appeals reversed, concluding that summary judgment was not appropriate because there were two versions of events surrounding the impact that rendering aid may have played in Oddsen’s death: “State Farm largely relies on the allegations in the complaint. Starting at approximately 4:00 a.m., Henry noticed that Oddsen was having difficulty breathing. Instead of calling ‘authorities,’ she called Hoffman, who responded by riding his bicycle to her home. Henry, without Oddsen, picked up Hoffman and returned to her residence where she and Hoffman belatedly attempted to render aid to Oddsen. Henry’s version of the events, however, was quite different, testifying that while Oddsen was putting on his shoes in the doorway after having agreed to go with Henry to the hospital, he suddenly collapsed. She and Hoffman tried to get Oddsen into his car in order to drive him to the hospital, and then she called 911 ‘within that same couple minutes.’”

As the court saw it, “[t]he fact finder at trial may believe the allegations in the complaint, if supported by the evidence presented at trial; the fact finder may believe Henry’s testimony; or it may find that the facts lie somewhere between those two versions, given the testimony of others, such as Cavanaugh and Hoffman.”

What’s most significant about the Oddsen decision is that, even if the lesson from the Illinois Appeals Court in Skolnik is that “failure to render aid” can be a basis to navigate around a broad “specified conduct exclusion” -- such as assault and battery, furnishing alcohol, criminal acts, etc. -- the failure to render aid may not have been an “occurrence” in the first place. If not, the insured never gets the chance to try such navigation.