                                         2014 IL App (1st) 132557

                                                                                      THIRD DIVISION
                                                                                      December 17, 2014


     No. 1-13-2557


     ALLSTATE INDEMNITY COMPANY,                            )
                                                            )
            Plaintiff-Appellee,                             )     Appeal from the Circuit Court
                                                            )     of Cook County.
     v.                                                     )
                                                            )
     LOUISE HIEBER, Special Administrator of the            )     No. 12 CH 40559
     Estate of Holly Hieber, deceased,                      )
                                                            )
            Defendant-Appellant                             )     The Honorable
                                                            )     LeRoy Martin,
     (Osvaldo Salazar, Manuel Salazar, and Graciela         )     Judge, presiding.
     Salazar,                                               )
                                                            )
            Defendants).                                    )


            JUSTICE MASON delivered the judgment of the court, with opinion.
            Presiding Justice Pucinski concurred in the judgment and opinion.
            Justice Hyman dissented, with opinion.

                                                   OPINION

¶1          The trial court granted plaintiff Allstate Indemnity Company summary judgment, holding

     that it is not required to defend or indemnify Osvaldo Salazar, Manuel Salazar, and Graciela

     Salazar for an accidental shooting that took the life of Holly Hieber. Defendant Louise Hieber, as

     special administrator of her daughter's estate, appeals. We agree with the trial court that an

     exclusion in Allstate's policy of homeowners insurance applies and, therefore, affirm.
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¶2                                          BACKGROUND

¶3          Allstate issued a homeowners policy to the Salazars effective March 2011. In that policy,

     Allstate agreed, in relevant part, to "pay damages which an insured person becomes legally

     obligated to pay because of bodily injury *** arising from an occurrence." The policy defines an

     "occurrence" as "an accident" resulting in bodily injury. The policy also contains the following

     exclusion:

                  "We do not cover any bodily injury or property damage intended by, or which may

            reasonably be expected to result from the intentional or criminal acts or omissions of, any

            insured person. This exclusion applies even if:

            (a) Such insured person lacks the mental capacity to govern his or her conduct;

            (b) Such bodily injury or property damage is of a different kind or degree than intended

            or reasonably expected; or

            (c) Such bodily injury or property damage is sustained by a different person than

            intended or reasonably expected.

            This exclusion applies regardless of whether or not such insured person is actually

            charged with, or convicted of a crime."

¶4          The following facts are taken from the record in the criminal case against Osvaldo

     Salazar.

¶5          On July 10, 2011, Brittany Garcia spent the day with her friends at the beach, including

     Hieber, Osvaldo, Heather Davis, and Oscar Barragan. At the beach they drank beer, took Xanax

     and smoked marijuana. They returned to Osvaldo's house after purchasing more beer and hung

     out in the garage. Osvaldo pulled out a .25-caliber semiautomatic handgun—which he had




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     purchased on the street—to show to his male friends. He pulled back the slide on the top of the

     gun while displaying it to ensure that it was loaded.

¶6          Davis told Osvaldo to put the gun away before he hurt somebody because it had been

     pointing toward her as he showed it off. Osvaldo put the gun away in the garage, but took it out

     again later to show off to other friends who showed up. Osvaldo gave the gun to Barragan to

     hold. Barragan took the magazine out and saw there were bullets in it. He held the gun and

     magazine for a while, then put the magazine back in and returned the gun to Osvaldo. Barragan

     did not recall if the safety was on when he returned the gun to Osvaldo.

¶7          Someone approached Hieber to see if she wanted to go get a keg of beer and buy more

     marijuana. Hieber agreed. At that point, Hieber, Osvaldo, and Barragan were the only people in

     the garage. Hieber turned around to leave and Osvaldo's gun discharged. Hieber lay on the floor

     of the garage, shot and bleeding from her head, the gun in Osvaldo's hand. No one saw how

     Osvaldo was holding the gun or what he was doing with it when it discharged. Osvaldo ran from

     the scene and hid the gun farther down the alley about five houses away. When police arrived,

     Osvaldo and the others initially told them Hieber had been shot in a drive-by shooting. When the

     spent casing was located under Hieber's body, police suspected the story was not true. While in

     custody, Osvaldo admitted that he accidently shot Hieber, who died the next day. Osvaldo later

     took police to the location in the alley where he had hidden the gun. The gun had one live round

     in the chamber and four live rounds in the magazine.

¶8          The State charged Osvaldo with four crimes, including involuntary manslaughter. 720

     ILCS 5/9-3(a) (West 2010). A person commits the offense of involuntary manslaughter "if his

     acts whether lawful or unlawful which cause the death are such as are likely to cause death or

     great bodily harm to some individual, and he performs them recklessly." Id. After a bench trial,



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       the court found Osvaldo guilty as charged. Specifically, the court found that Osvaldo had been

       drinking and decided to show off his handgun to his friends:

                   "I can think of few things more reckless, careless, wanton and brazen than *** to take

              a loaded gun among intoxicated people and start waving it around."

¶9            In 2012, Hieber's estate filed a complaint against the Salazars, alleging that Osvaldo

       negligently handled the gun, and that Osvaldo's parents (Manuel and Graciela) negligently stored

       the gun and allowed Osvaldo access to it. The Salazars tendered the claim to Allstate. Allstate

       filed a declaratory judgment action against Hieber's estate and the Salazars, seeking a declaration

       that it was not obligated to defend or indemnify the Salazars in the underlying action. The trial

       court granted summary judgment to Allstate, finding that the exclusion in Allstate's policy for

       bodily injury reasonably expected to result from the insured's criminal acts applied and,

       therefore, Allstate was not obligated to defend or indemnify the Salazars in the underlying suit.

       Hieber's estate appealed.

¶ 10                                      STANDARD OF REVIEW

¶ 11          Summary judgment is appropriate where the pleadings, depositions, admissions, and

       affidavits—when construed against the moving party—show that there is no genuine issue of

       material fact and that the moving party is entitled to a judgment as a matter of law. Indian

       Harbor Insurance Co. v. MMT Demolition, Inc., 2014 IL App (1st) 131734, ¶ 25. We review the

       grant of summary judgment de novo. Id. ¶ 26.

¶ 12                                              ANALYSIS

¶ 13          Courts interpret insurance policies as contracts and give effect to the parties' intentions as

       expressed in the policy. American Family Mutual Insurance Co. v. Jeris, 376 Ill. App. 3d 1070,




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       1072-73 (2007). We apply clear and unambiguous terms according to their plain meaning, while

       ambiguous terms should be construed against the insurer. Id. at 1073.

¶ 14          As noted above, Allstate's policy excludes coverage for bodily injury "intended by, or

       which may reasonably be expected to result from the intentional or criminal acts or omissions of,

       any insured person." The plain meaning of this provision excludes coverage in two

       circumstances. First, coverage is excluded when the insured intended to inflict bodily harm.

       Allstate Insurance Co. v. Brown, 16 F.3d 222, 225 (7th Cir. 1994). The record in the criminal

       trial makes clear that Osvaldo did not intend to injure or kill Hieber. See Aetna Casualty &

       Surety Co. v. Freyer, 89 Ill. App. 3d 617, 620 (1980) (defining "intent" in exclusionary clause as

       desiring consequences of an act or believing that the consequences are substantially certain to

       occur). As such, coverage is not excluded under the intended-injury part of the exclusion.

¶ 15          As to the second part of the exclusion, the policy inquires whether the bodily injury was

       such that it "may reasonably be expected to result from the intentional or criminal acts or

       omissions of, any insured person." As it applies here, the exclusion precludes coverage where the

       injury is the reasonably expected result of the insured's criminal act. Our inquiry into the "act"

       portion of the exclusion is simple. Because Osvaldo was convicted after trial of involuntary

       manslaughter, under any definition of the word, Osvaldo's act of handling the gun was

       "criminal." See Black's Law Dictionary 430 (9th ed. 2009) ("Having the character of a crime; in

       the nature of a crime ***."); Webster's Third New International Dictionary 536 (1993)

       ("involving or being a crime"). The only issue then is whether it can be said that Hieber's injury

       could reasonably be expected to result from Osvaldo's criminal act.

¶ 16          Allstate first argues that Osvaldo's criminal conviction collaterally estops Hieber's estate

       from contending that Hieber's death was not the reasonably expected result of Osvaldo's criminal



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       act. In support, Allstate cites American Family Mutual Insurance Co. v. Savickas, 193 Ill. 2d 378

       (2000). In Savickas, the insured shot and killed a man and was convicted of first degree murder.

       Id. at 380. At the insured's criminal trial, he "admitted that the gun did not go off accidentally"

       and "that he intentionally pointed the gun at the decedent and intentionally pulled the trigger

       while the gun was so aimed." Id. at 382. The victim's estate sued the insured for wrongful death,

       and the insured tendered the claim to his homeowners insurance carrier. Id. at 380-81. The

       insurance company filed a declaratory judgment action, alleging no coverage, and the trial court

       granted summary judgment as the policy excluded coverage for injury " 'which is expected or

       intended by any insured.' " Id. at 382.

¶ 17           Our supreme court held that the insured's criminal conviction constituted conclusive

       proof of the facts on which it was based, including the insured's intent, and that collateral

       estoppel precluded relitigation of those issues in the declaratory judgment action. Id. at 387.

       Expressly overruling the holding of Thornton v. Paul, 74 Ill. 2d 132, 151 (1978), which found

       that a criminal conviction was only prima facie evidence and not conclusive proof of the facts

       underlying the conviction, the Savickas court, following the trend in the vast majority of

       jurisdictions, held that a criminal conviction collaterally estops the retrial of issues in a later civil

       trial that were actually litigated in the criminal trial. Savickas, 193 Ill. 2d at 384. The court

       reasoned that the heightened burden of proof applicable in criminal cases, as well as the

       substantial rights afforded criminal defendants, including the right to remain silent and the State's

       inability to comment on that silence, weighed in favor of according estoppel effect to criminal

       convictions. Id. at 385-86. The court further found that the traditional elements of collateral

       estoppel—identity of issues, identity of parties and a final judgment on the merits—were all

       satisfied in the context of Savickas's criminal conviction: (i) a determination of Savickas's mental



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       state, i.e., that he either intended the victim's death or knew that his acts created a strong

       probability of death or great bodily harm, was necessary to his conviction; (ii) Savickas was a

       party to both cases; and (iii) Savickas litigated the issue to verdict and through appeal and thus

       there was a final adjudication on the merits. Id. at 388-89. Finally, because the rights of the

       victim's estate against the insurer were wholly derivative of Savickas's rights under the policy,

       the estate was bound to the result of the criminal trial as well. Id. at 392-93.

¶ 18          Hieber's estate urges us to apply Savickas in the same way the appellate court applied the

       collateral estoppel doctrine to a crime of recklessness in Metropolitan Property & Casualty

       Insurance Co. v. Pittington, 362 Ill. App. 3d 220 (2005). In Pittington, the insured discharged a

       shotgun, injuring a person. Id. at 222. The insured was charged with attempted murder,

       aggravated battery with a firearm, and unlawful possession of a firearm without a firearm owner

       identification card, but he accepted a deal and pled guilty to reckless conduct (720 ILCS 5/12-5

       (West 2000)). Pittington, 362 Ill. App. 3d at 222. The injured person filed suit against the

       insured, who tendered the defense to Metropolitan, his homeowners insurance carrier. Id. The

       policy excluded coverage for injury that " 'may reasonably be expected to result from' " the

       criminal acts of the insured. Id. at 224. Based on the preclusive effect of the insured's guilty plea,

       Metropolitan was granted summary judgment. Id. at 222-23.

¶ 19          The appellate court reversed in part, holding that the insured's plea had no preclusive

       effect in the insurance coverage case. Id. at 227-28. The court reasoned that the issues in the

       criminal case where not identical to those in the insurance case: "In pleading guilty to reckless

       conduct, [the insured] admitted he performed an act that caused the harm or endangered the

       safety of [the injured claimant] with 'conscious disregard' of a substantial and unjustifiable risk.

       [Citation.] [The insured's] plea is in no way an admission that he expected, anticipated or



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       intended to cause bodily harm to [the injured claimant] and, therefore, cannot meet the first part

       of the Savickas estoppel test." Id. at 227. Further, the court found that in the context of a

       criminal trial in which the insured, if convicted, faced a sentence of 31 years to natural life, the

       State's offer mid-trial to allow the insured to plead guilty to the misdemeanor charge of reckless

       conduct rendered the criminal proceedings a " 'side show,' " which would preclude any rulings or

       admissions from being afforded preclusive effect in the civil suit. Id.

              "The 'practical realities' of [the insured's] criminal litigation were such that when offered

              the chance to plead to misdemeanor reckless conduct, he had little incentive to continue

              the litigation in a 'struggle to the finish.' [Citation.] Even an innocent defendant would

              have to be of stout heart to reject such an offer." Id. at 228.

¶ 20          We believe this case is more analogous to Savickas than Pittington. Here, Osvaldo

       elected to go to trial on the charge of involuntary manslaughter. There is no dispute that the

       judgment of conviction entered after trial constituted a final determination on the merits and that

       Osvaldo, as a party to both cases, and derivatively, Hieber's estate, are the same parties for

       purposes of collateral estoppel. The only issue then is whether the state of mind necessary to

       Osvaldo's criminal conviction presents the same issue implicated by Allstate's policy exclusion.

       We can find no meaningful distinction between the two.

¶ 21          In connection with Salazar's criminal trial, the trial court found that he acted with the

       requisite intent in that he "purposely went and got a gun and brought it to a party" and that "he

       knew at the beginning that he committed an inexcusable act of recklessness causing the death of

       Holly Hieber." Under the Criminal Code of 1961, 1 involuntary manslaughter has three elements:

       (i) an unintentional killing without lawful justification; (ii) the defendant acts in such a way

       1
        720 ILCS 5/1-1 et seq. (West 2010). The Criminal Code of 2012 (720 ILCS 5/1-1 et seq. (West
       2012)) postdates Osvaldo's crime.
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       likely to cause death or great bodily harm to someone; and (iii) acts are performed recklessly.

       720 ILCS 5/9-3(a) (West 2010). "Recklessness" is a mental state defined as a conscious

       disregard of a substantial and unjustifiable risk constituting a gross deviation from the standard

       of care a reasonable person would exercise in the situation. 720 ILCS 5/4-6 (West 2010). Thus,

       as applied to Osvaldo, his conviction for involuntary manslaughter means that: (i) he handled

       the gun in a way that was likely to cause death or great bodily harm to someone; (ii) his handling

       of the gun showed a conscious disregard of a substantial and unjustifiable risk of great bodily

       harm; and (iii) his conduct constituted a gross deviation from the standard of care a reasonable

       person would exercise under similar circumstances.

¶ 22          Allstate's policy looks at the insured's conduct from a slightly different vantage point and

       excludes claims for bodily injury "which may reasonably be expected to result from the criminal

       acts or omissions" of the insured. The dissent reasons that because the criminal statute and

       Allstate's policy exclusion are not identical formulations, Salazar's conviction of the crime of

       involuntary manslaughter does not preclude him from litigating whether Hieber's death could

       reasonably be expected to result from his criminal act. But when the trial court in the criminal

       case found that Salazar's acts were "likely to cause the death" of Hieber and that he was

       "reckless" for engaging in such acts, that is simply another way of saying that it was reasonable

       to expect that Hieber's death was likely to result from Salazar's reckless and criminal acts, i.e.,

       precisely the circumstances that trigger the exclusion.

¶ 23          The dissent draws a distinction between an injury resulting from criminally reckless

       conduct and one "expected" by the insured, contending that the latter requires a showing that the

       injury was "practically certain" to occur. But each of the cases cited by the dissent regarding the

       meaning of "expected" under an insurance policy involved policy provisions that required a



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       determination as to whether the injury was expected from the standpoint of the insured. See

       Farmers Automobile Insurance Ass'n v. Danner, 2012 IL App (4th) 110461, ¶ 33 (policy

       provision excluded coverage for bodily injury "expected or intended by the insured"); Bay State

       Insurance Co. v. Wilson, 96 Ill. 2d 487, 491 (1983) (policy did not apply to bodily injury that

       was "either expected or intended from the standpoint of the insured" (emphases and internal

       quotation marks omitted)); American Family Mutual Insurance Co. v. Guzik, 406 Ill. App. 3d

       245, 246 (2010) (coverage excluded for "bodily injury *** caused intentionally by or at the

       direction of any insured even if the actual bodily injury *** is different than that which was

       expected or intended from the standpoint of any insured" (emphases and internal quotation marks

       omitted)). Such provisions necessarily involve an assessment of the insured's subjective mental

       state. In contrast, under Allstate's criminal acts exclusion, the focus is on whether the

       consequences of the insured's criminal act are reasonably expected, an analysis that has nothing

       to do with the insured's subjective beliefs. Thus, Allstate's policy draws no distinction between

       the insured's "knowing" or "reckless" criminal acts as long as the consequences of those acts are

       reasonably expected to result. As we discuss below, this calls for an objective rather than a

       subjective analysis and thus the dissent's focus on Osvaldo's state of mind is misplaced.

¶ 24          Further, we find no significance, for purposes of collateral estoppel, in Osvaldo's decision

       not to testify in the criminal case. Notwithstanding Osvaldo's exercise of his right to remain

       silent, he still had the same incentive to litigate the criminal case as the defendant in Savickas

       and the State was required to sustain the same burden of proof beyond a reasonable doubt.

       Indeed, the Savickas court noted that among the rights afforded criminal defendants was the right

       to remain silent (Savickas, 193 Ill. 2d at 385), thus supporting the conclusion that the insured's

       exercise of that right, which requires the State to prove its case without the benefit of his



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       testimony, weighs in favor of rather than against the invocation of collateral estoppel. Based on

       the evidence presented, the trial court found that Osvaldo's acts in waving around a loaded gun

       were such as were likely to cause death or great bodily harm to some individual, and he

       performed those acts recklessly. We can see no reason why Osvaldo's decision to refrain from

       testifying should entitle him to relitigate in this case the issue of his intent and argue that he did

       not reasonably expect the bodily injury caused by his criminal acts, a conclusion that would be

       directly contrary to the facts and findings underlying his criminal conviction. Stated differently,

       we find no equitable considerations compel us to refrain from giving preclusive effect to

       Osvaldo's criminal conviction. See Savickas, 193 Ill. 2d at 391 (finding no potential unfairness

       to Savickas in according preclusive effect to his criminal conviction, court observed: " 'A

       criminal defendant receives procedural protections surpassing those accorded any civil litigant,

       and thus cannot legitimately question the adequacy of the opportunity to litigate or the reliability

       of the determinations made.' " (quoting Jonathan C. Thau, Collateral Estoppel and the Reliability

       of Criminal Determinations: Theoretical, Practical, and Strategic Implications for Criminal and

       Civil Litigation, 70 Geo. L.J. 1079, 1089 (1982)).

¶ 25           Even if we agreed that the fact that Osvaldo did not testify should weigh against

       affording preclusive effect to his criminal conviction, the evidence that Osvaldo claims creates a

       genuine issue of material fact requiring resolution at trial—his subjective lack of intent to shoot

       Hieber—is insufficient to defeat Allstate's entitlement to judgment as a matter of law. This is

       because Allstate's policy, in excluding claims for bodily injury reasonably expected to result

       from an insured's criminal acts, employs an objective, rather than a subjective standard by which

       to gauge the insured's conduct. See Aetna Casualty & Surety Co. v. Dichtl, 78 Ill. App. 3d 970,

       976 (1979) ("[T]he word 'reasonably' is indicative of an objective standard."); see also Allstate



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       Insurance Co. v. Brown, 16 F.3d 222, 226 (7th Cir. 1994) ("[W]e note that we are not the first

       jurisdiction to interpret the Allstate exclusion at issue here. Many other jurisdictions have

       addressed the meaning of the intentional or criminal acts exclusion and have found it

       unambiguous and providing an objective standard. [Citations.]"); Stinson v. Allstate Insurance

       Co.,441 S.E. 2d 453, 454 (Ga. Ct. App. 1994) (if consequences of criminal act are foreseeable by

       a reasonable person, as opposed to the insured, coverage for injury barred). Thus, accepting as

       true that Osvaldo did not subjectively intend to injure Hieber and that, as Osvaldo admitted, the

       gun discharged accidentally, those facts are legally irrelevant in determining whether a

       reasonable person in Osvaldo's position would reasonably expect that bodily injury would result

       from his conduct. Because it is obvious that it is reasonable to expect that the act of a person in

       waving a loaded gun around a group of young people, all of whom had been drinking and some

       of whom had been abusing prescription drugs and smoking marijuana, will result in injury to

       someone, Osvaldo's subjective lack of intent to cause Hieber's death cannot avoid the effect of

       the exclusion.

¶ 26          The parties have not cited nor have we located any reported Illinois decisions construing

       the criminal acts exclusion in Allstate's homeowners policy. But many courts around the country

       have applied the same or a similar exclusion under analogous circumstances and the result we

       reach is in accord with the majority of those reported decisions. In Brown, the Seventh Circuit,

       applying Indiana law, considered an Allstate homeowners policy provision excluding claims for

       bodily injury "which may reasonably be expected to result from the intentional or criminal acts

       of an insured person or which is in fact intended by an insured person." The insured pled guilty

       to recklessly inflicting serious bodily harm after he shot the victim. The insured denied

       consciously pulling the trigger of the gun, but conceded that the weapon could not have



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       spontaneously discharged. Granting Allstate's motion for summary judgment, the district court

       determined that both the intentional and criminal acts exclusions applied and that the insured's

       subjective intent when he drew the pistol and pointed it at the victim was immaterial. The

       Seventh Circuit concluded that the exclusion of claims for bodily injury "reasonably expected"

       did not require the application of a subjective standard, but rather the plain meaning of the

       provision excluded injuries that are the foreseeable consequence of the insured's criminal act, an

       objective determination. Brown, 16 F.3d at 225-26. The Brown court concluded that the district

       court, employing an objective standard, properly looked "to the predicate acts of [the insured]

       and the resulting injuries to Brown and determin[ed] that Brown's injuries were the probable,

       direct and foreseeable consequence of the predicate acts." Id. at 226.

¶ 27            The same can be said here. Hieber's death was the "probable, direct and foreseeable

       consequence" of Osvaldo's conduct in waving a fully loaded gun around a group of people who

       had been drinking, abusing prescription drugs and smoking marijuana, particularly since the

       evidence shows that one of the group had already warned Osvaldo about the danger his conduct

       posed.

¶ 28            Similarly, in Allstate Insurance Co. v. Burrough, 120 F.3d 834 (8th Cir. 1997), the Eighth

       Circuit found that the same exclusion in Allstate's homeowners policy at issue here precluded

       coverage for the insured minor's conduct in giving a loaded gun, which had previously misfired,

       to another minor. The initial transferee of the weapon gave it to a third minor who, while

       "flashing" it out the window of a car, accidentally shot and seriously wounded the victim. Even

       though the insured minor was never charged criminally or in juvenile court as a result of the

       shooting, the Eighth Circuit agreed with the district court's determination that by furnishing a

       deadly weapon to a minor, the insured had nonetheless committed a criminal act. Turning to the



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"reasonably expected" language of the exclusion, the court found that "[t]he undisputed material

facts demonstrate that a reasonable person would have expected [the victim's] injuries to result

from the act of furnishing [the initial transferee] with a loaded .22 caliber handgun that had

previously misfired." Id. at 841. Other courts have likewise determined that the application of

the exclusion is amenable to disposition on summary judgment. See Allstate Insurance Co. v.

Gittings, No. 2:07-cv-1468-RLH-LRL, 2008 U.S. Dist. LEXIS 62508, at *11-13 (D. Nev.

Aug. 8, 2008) (accidental discharge of a shotgun resulting the death of the victim; insured pled

guilty to involuntary manslaughter; applying objective standard, court found exclusion applied);

Allstate Insurance Co. v. Cartwright, Nos. 15472, 15473, 1997 WL 368370, at *4 (Ohio Ct. App.

June 27, 1997) (insured and victim riding in car shooting guns from front and rear passenger

windows; insured fired gun over victim's shoulder and accidentally shot victim in the hand;

insured pled guilty to improperly handling a firearm in a vehicle; court found it "inherently

dangerous for one who is only a few feet away from another to aim a gun within inches of the

other person's body and to fire it, not to mention doing so in the dark after one has been

drinking"); Allstate Insurance Co. v. Schmitt, 570 A.2d 488, 492 (N.J. Super. Ct. App. Div.

1990) (insured struck victim in face while holding a glass in his hand; insured, who pled guilty to

aggravated assault by recklessly causing bodily injury to another with a deadly weapon, claimed

he did not know he was holding the glass until it shattered; court construed the exclusion "in

accordance with the unambiguous language employed, as barring coverage with respect to the

reasonably foreseeable consequences of the insured's criminal act"; court further found no public

policy precluded issuer of homeowner's insurance policy from excluding coverage for injuries

that result from criminally reckless conduct (id. at 493-94)).




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¶ 29             All of the foregoing cases support the conclusion we reach here. Allstate Insurance Co.

       v. Zuk, 574 N.E.2d 1035 (N.Y. 1991), cited by the dissent, is distinguishable on its facts. In Zuk,

       the insured was cleaning and loading a shotgun, which accidentally discharged, killing the

       victim. The insured later pled guilty to recklessly causing the victim's death. The insured in Zuk

       was not engaging in inherently dangerous or criminal conduct when the gun accidentally

       discharged. In concluding that it could not be determined as a matter of law that the injury to the

       victim could reasonably be expected to result from the insured's conduct, the Zuk court found

       that it was possible that a person could undertake a calculated risk, i.e., cleaning and loading a

       weapon in the presence of others, "without expecting—no less reasonably—that an accident will

       occur." (Emphasis in original.) Id. at 1038. Further, the court was unwilling to accord

       preclusive effect to the insured's guilty plea to second degree manslaughter.

¶ 30             Here, Osvaldo's conduct was inherently dangerous and criminal. There is simply no

       comparison between Osvaldo's conduct and the Zuk insured's perfectly legal acts of cleaning and

       loading a weapon. When an insured waves a fully loaded gun in a group of young people, all

       whom are under the influence, and does so after being warned of the inherent risk in his conduct,

       the only conclusion to be drawn is that injury to someone would reasonably be expected to

       result.

¶ 31             The dissent's further point that there is no evidence regarding how Osvaldo was handling

       the gun when it fired overlooks the fact that in response to Allstate's motion for summary

       judgment, neither the Salazars nor Hieber's estate produced this information, but instead relied

       solely on the transcript of the criminal trial. If the manner in which Osvaldo handled the gun

       created genuine issues of material fact regarding whether Hieber's injury could reasonably be

       expected from his criminal act, it was the non-moving parties' burden to identify those issues and



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       present evidence to support them. Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002) ("[I]n order

       to survive a motion for summary judgment, the nonmoving party must present a factual basis that

       would arguably entitle the party to a judgment."); Keating v. 68th & Paxton, L.L.C., 401 Ill. App.

       3d 456, 472 (2010) (the nonmoving party "must come forth with some evidence that arguably

       would entitle him to recover at trial"). Because the parties opposing Allstate's motion for

       summary judgment failed to provide an affidavit or any evidence other than the transcript of the

       criminal trial, the trial court properly resolved Allstate's motion on that record.

¶ 32          Finally, the decision we reach here does not contravene public policy. Insurance

       companies are free to enter into contracts with their insureds, which we must enforce according

       to their terms. Jeris, 376 Ill. App. 3d at 1072-73. Unlike automobile policies, no public policy

       requires homeowners to carry homeowners insurance or carriers to provide the full panoply of

       coverage under homeowners policies. See People ex rel. Terry v. Fisher, 12 Ill. 2d 231, 237

       (1957) (referring to Illinois statutes "that confer an interest in such a[n] [automobile liability]

       policy on every member of the public that is negligently injured"); Central Mutual Insurance Co.

       v. Tracy's Treasures, Inc., 2014 IL App (1st) 123339, ¶ 103 (noting no public policy requires

       those who advertise their business through electronic transmissions to carry liability insurance to

       cover claims by recipients); see also Schmitt, 570 A.2d at 494 (rejecting insured's argument that

       exclusion violated public policy: "This case involves an exclusion contained in a homeowners

       policy. We are thus not concerned with legislation involving automobiles or other forms of

       insurance that must be construed 'with liberality in effecting the broadest protection … of

       accident victims consistent with the language of the pertinent statute.' [Citation.]"). No

       identifiable public policy prevents Allstate from refusing to insure the risk of bodily injury

       reasonably expected as a result of an insured's criminally reckless acts.



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¶ 33                                             CONCLUSION

¶ 34          We believe the trial court properly afforded preclusive effect to Osvaldo's criminal

       conviction after trial. But even if we found otherwise, we would nevertheless affirm summary

       judgment for Allstate because there exist no genuine issues of material fact regarding whether

       Hieber's death was, from an objective standpoint, reasonably to be expected as a result of

       Osvaldo's criminal acts. Accordingly, we affirm the order of the circuit court granting Allstate's

       motion for summary judgment.

¶ 35          Affirmed.

¶ 36          JUSTICE HYMAN, dissenting.

¶ 37          I find the majority's application of collateral estoppel to be manifestly unfair, contrary to

       the principles of that doctrine, and against public policy. In addition, I interpret Allstate's policy

       exclusion to be inapplicable, as it requires at a minimum a crime of "knowledge" rather than

       "recklessness." Thus, I respectfully dissent. I would reverse the grant of summary judgment, and

       remand for further proceedings.

¶ 38          Allstate's policy excludes coverage for bodily injury "intended by, or which may

       reasonably be expected to result from the intentional or criminal acts or omissions of, any

       insured person." (Emphasis added.) Allstate and the majority conclude that Osvaldo's criminal

       conviction for involuntary manslaughter collaterally estops Hieber's estate from litigating the

       issue of whether Hieber's death was reasonably expected. I could not disagree more.

¶ 39          Collateral estoppel is an equitable doctrine that precludes a party from relitigating an

       issue decided in an earlier proceeding. American Family Mutual Insurance Co. v. Savickas, 193

       Ill. 2d 378, 387 (2000). The purpose of the doctrine is to promote judicial economy and prevent

       repetitive litigation. Bickel v. Subway Development of Chicagoland, Inc., 354 Ill. App. 3d 1090,



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       1102 (2004). The threshold requirements to the doctrine's application are: (i) the issue presented

       in the earlier case must be identical to the one presented in the current case; (ii) the earlier case

       must have received final judgment on the merits; and (iii) the party against whom estoppel is

       asserted must have been a party or must have been in privity with a party in the earlier case.

       Savickas, 193 Ill. 2d at 387. Moreover, the application of the doctrine must not result in any

       unfairness to the estopped parties; they must have had a full and fair opportunity and incentive to

       present their case in the earlier suit. Id. at 388.

¶ 40           Two of the collateral estoppel requirements are not met: (i) the relevant issues between

       the criminal and insurance cases are not identical; and, besides, (ii) Osvaldo's invocation in the

       criminal proceeding of his fifth amendment right not to testify precluded his opportunity to

       litigate whether Beiber's death was reasonably expected.

¶ 41                                          Lack of Identity of Issues

¶ 42           Involuntary manslaughter is a crime of recklessness. See 720 ILCS 5/9-3 (West 2010).

       Recklessness is not identical to the "reasonably expected" standard in Allstate's policy, thus

       precluding any estoppel effect. See Nowak v. St. Rita High School, 197 Ill. 2d 381, 390-91

       (2001) ("Application of the doctrine of collateral estoppel must be narrowly tailored to fit the

       precise facts and issues that were clearly determined in the prior judgment.").

¶ 43           The majority cites to several foreign cases that have held a crime of recklessness means

       that an injury was reasonably expected. Supra ¶¶ 26-29. New York courts have held the

       opposite. Allstate Insurance Co. v. Zuk, 574 N.E.2d 1035 (N.Y. 1991); Green v. Allstate

       Insurance Co., 576 N.Y.S. 2d 639 (N.Y. App. Div. 1991); Trafalski v. Allstate Insurance Co.,

       688 N.Y.S. 2d 448 (N.Y. App. Div. 1999). Regardless of how other jurisdictions have decided

       the issue, this court must follow the rulings in American Family Mutual Insurance Co. v.



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       Savickas, 193 Ill. 2d 378 (2000), and Metropolitan Property & Casualty Insurance Co. v.

       Pittington, 362 Ill. App. 3d 220 (2005)—two rulings the majority does not faithfully apply.

¶ 44          In Savickas, the insured was convicted of first degree murder, and the victim's estate filed

       suit against the insured. Savickas, 193 Ill. 2d at 380. The insured tendered the suit to his insurer,

       whose policy excluded "bodily injury or property damage 'which is expected or intended by any

       insured.' " Id. at 381. The Illinois supreme court applied collateral estoppel because the issues in

       the criminal case and insurance case were exactly identical:

                   "By finding [the insured] guilty of first degree murder the jury necessarily found him

                   either to have intended to kill the victim, or at least to have known that his acts

                   created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(1),

                   (a)(2) (West 1992). This finding establishes that he 'intended or expected' the result of

                   his actions, the issue in the declaratory judgment action." Id. at 388.

       The Savickas court drew a direct connection between the insured's mental state as defined in his

       conviction for first degree murder (intent or knowledge) and the mental state in the policy's

       exclusion (intent or expectation). Id. No similar connection exists here.

¶ 45          As already mentioned, involuntary manslaughter (as opposed to first degree murder) is a

       crime of recklessness. 720 ILCS 5/9-3(a) (West 2010). "Recklessness" is a mental state defined

       as a conscious disregard of a substantial and unjustifiable risk constituting a gross deviation from

       the standard of care a reasonable person would exercise in the situation. 720 ILCS 5/4-6 (West

       2010). Osvaldo's recklessness does not indicate that Hieber's injury was "reasonably expected."

¶ 46          In reaching this conclusion, I follow our holding in Metropolitan Property & Casualty

       Insurance Co. v. Pittington, 362 Ill. App. 3d 220 (2005). In Pittington, while the insured cleaned

       a loaded shotgun, the weapon discharged and injured a person. Id. at 222. The insured was



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       charged with attempted murder, aggravated battery with a firearm, and unlawful possession of a

       firearm without a firearm owner's identification card, but he accepted a deal and pleaded guilty to

       reckless conduct (720 ILCS 5/12-5 (West 2000)). Pittington, 362 Ill. App. 3d at 222. The injured

       person sued the insured, who tendered the suit to his homeowner's insurance company. Id. The

       insurance company filed a declaratory judgment action and the trial court granted the insurance

       company summary judgment. Id. at 222-23. The appellate court reversed, holding that the

       insured's plea had no collateral estoppel effect in the insurance coverage case. Id. at 227-28.

¶ 47          Like here, the Pittington policy excluded coverage for injury that " 'may reasonably be

       expected to result from' " the criminal acts of the insured. Id. at 224. Unlike in Savickas, the

       Pittington court held that the dubious connection between the insured's criminal mental state

       (recklessness) and the mental state in the policy exclusion (expected) did not merit application of

       the collateral estoppel doctrine:

                   "In pleading guilty to reckless conduct, [the insured] admitted he performed an act

                   that caused the harm or endangered the safety of [the injured claimant] with

                   'conscious disregard' of a substantial and unjustifiable risk. [Citation.] [The insured's]

                   plea is in no way an admission that he expected, anticipated or intended to cause

                   bodily harm to [the injured person] and, therefore, cannot meet the first part of the

                   Savickas estoppel test." Id. at 227.

¶ 48          Allstate and the majority attempt to distinguish Pittington on the basis that in Pittington

       the insured took a plea deal. Indeed, the Pittington court did say collateral estoppel does not

       apply unless the criminal conviction was a "struggle to the finish." (Internal quotation marks

       omitted.) Id. at 228. That, however, does not render inapplicable the court’s reasoning for




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       differentiating conduct where injury was reasonably expected from reckless conduct. Pittington,

       362 Ill. App. 3d at 227 (citing 720 ILCS 5/12-5, 4-6 (West 2000)).

¶ 49          This case boils down to a clash between the terms "expected injury" and "reckless

       conduct." "Expected injury" is not synonymous or interchangeable with "reckless conduct," and

       the distinction underscores the essential fallacy of the majority’s argument (see supra ¶ 22)—the

       terms refer to two mutually exclusive mental states.

¶ 50          In the insurance context, an injury is "expected" when "practically certain to be caused

       by the conduct." (Emphasis added.) Farmers Automobile Insurance Ass'n v. Danner, 2012 IL

       App (4th) 110461, ¶ 34 (policy excluded bodily injury expected or intended by the insured); Bay

       State Insurance Co. v. Wilson, 96 Ill. 2d 487, 494 (1983) (same); American Family Mutual

       Insurance Co. v. Guzik, 406 Ill. App. 3d 245, 248 (2010) (same). "Practical certainty" is only met

       where a crime is committed "knowingly." Under the Criminal Code of 1961, the definition of

       "knowledge" provides, "A person knows, or acts knowingly or with knowledge of *** [t]he

       result of his or her conduct *** when he or she is consciously aware that that result is practically

       certain to be caused by his conduct." (Emphasis added.) 720 ILCS 5/4-5(b) (West 2010).

¶ 51          In contrast, “reckless conduct” does not rise to the level of "practical certainty," because,

       as already noted, it requires a conscious disregard of a substantial and unjustifiable risk. 720

       ILCS 5/4-6 (West 2010). As the Illinois Supreme Court has recognized, "recklessness and

       knowledge are mutually inconsistent culpable mental states." People v. Fornear, 176 Ill. 2d 523,

       531 (1997).

¶ 52          If Osvaldo had killed Hieber knowingly, he would be guilty of first degree murder. See

       720 ILCS 5/9-1(a)(1) (West 2010) ("A person who kills an individual without lawful justification

       commits first degree murder if, in performing the acts which cause the death *** he *** knows



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       that such acts will cause death to that individual or another; or *** he knows that such acts create

       a strong probability of death or great bodily harm to that individual or another [.]" (Emphases

       added.)). "The key difference between first degree murder and involuntary manslaughter is the

       mental state: acting while knowing of a strong probability of death or great bodily harm versus

       acting recklessly." (Emphases in original.) People v. Kibayasi, 2013 IL App (1st) 112291, ¶ 42.

       In applying the collateral estoppel doctrine, the majority treats Osvaldo's conviction for

       involuntary manslaughter as it would a conviction for first degree murder. The criminal court

       condemned Osvaldo for one crime, and this court condemns him for a different one.

¶ 53          While Osvaldo's criminal conviction establishes that he disregarded a substantial and

       unjustifiable risk of great bodily harm, "[a] person may engage in behavior that involves a

       calculated risk without expecting—no less reasonably—that an accident will occur. Such

       behavior, which may be reckless for criminal responsibility purposes, does not necessarily mean

       that the actor reasonably expected the accident to result [citations]." Allstate Insurance Co. v.

       Zuk, 574 N.E.2d 1035, 1038 (N.Y. 1991); Commonwealth v. Levesque, 766 N.E.2d 50, 59 (Mass.

       2002) ("Although it is true that recklessness must involve an intentional act or omission, a

       finding of recklessness is grounded in intent to engage in the reckless conduct, and not intent to

       bring about the harmful result.").

¶ 54          The majority draws an artificial distinction by attempting to distinguish Illinois cases that

       define an "expected" injury as "practically certain," by arguing that those cases look to the

       subjective intent of the insured, while Allstate's policy does not. Supra ¶ 23. Whether a policy

       excludes an injury that is subjectively or objectively "expected" does not alter the definition of

       “expected.” Needless to say, where a policy does not define a term, courts give the word its

       plain, ordinary, and generally accepted meaning. Continental Casualty Co. v. Donald T.



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       Bertucci, Ltd., 399 Ill. App. 3d 775, 780 (2010). Nothing in the case law supports the majority’s

       position that the plain, ordinary, and generally accepted meaning of an "expected injury,”

       somehow shifts from policy to policy when referencing subjectivity in some policies and

       objectivity in others.

¶ 55           Accordingly, Osvaldo's conviction for a crime of recklessness does not preclude litigation

       over the issue of whether Hieber's death was reasonably expected.

¶ 56           Moreover, the facts established in Osvaldo's criminal case are insufficient to determine—

       as a matter of law—whether Hieber's death was reasonably expected. See People v. Tenner, 206

       Ill. 2d 381, 396 (2002) (holding collateral estoppel applies when "some controlling fact or

       question material to the determination of both causes has been adjudicated" (internal quotation

       marks omitted)). As Barragan testified in the State's case, he did not see how Osvaldo was

       holding or handling the gun when it discharged. Only Osvaldo himself might know how the gun

       was being handled when it went off, and the question of whether Hieber's death was reasonably

       expected hinges on what Osvaldo was doing with the gun at the time of discharge, not before.

       Because Osvaldo exercised his constitutional right not to testify, the record in the criminal case

       does not indicate how he was handling the gun when it fired. This factual void must be filled in

       the insurance case.

¶ 57           The majority contends the State had the same burden of proof and Osvaldo had the same

       incentive to litigate his criminal case as the defendant in Savickas (supra ¶ 24), but that is beside

       the point. The State will always have the same burden of proof in a criminal case, but that burden

       has no legal significance in determining whether application of the collateral estoppel doctrine is

       equitable. As for Osvaldo's incentive to litigate the criminal case, again, that has a different legal

       significance for present purposes. A criminal defendant's refusal to testify in a criminal case will



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       not always bear the same import in determining whether the conviction has any preclusive effect.

       In Osvaldo's case, it certainly does not mean that the majority can explain what happened for

       him.

¶ 58           The necessity of Osvaldo's testimony is reinforced by the majority's attempt to

       distinguish Allstate Insurance Co. v. Zuk, 574 N.E.2d 1035 (N.Y. 1991). Supra ¶ 29. The

       majority surmises that the action of the insured in Zuk—cleaning a loaded gun in the presence of

       others—is "perfectly legal" and therefore different from the way Osvaldo handled the gun. Supra

       ¶ 30. But in Zuk, the court knew what the insured was doing when the shotgun discharged. We

       do not know what Osvaldo was doing—a telling and vital distinction. The purpose of collateral

       estoppel is to promote judicial economy, and not—as the majority applies it—to cut off the

       court's truth finding role.

¶ 59           The majority incorrectly argues that Hieber's estate, as the nonmoving party, had the

       burden to show the presence of an issue of material fact. Supra ¶ 31. The burden on summary

       judgment does not shift to the nonmoving party until the movant shows that there are no issues

       of material fact and that it is due judgment as a matter of law. See Hall v. Burger, 277 Ill. App.

       3d 757, 761 (1996) ("the party opposing the motion [for summary judgment] need not file any

       counteraffidavits to create a material question of fact unless the movant presents evidence which

       precludes any possible liability"); Ulm v. Memorial Medical Center, 2012 IL App (4th) 110421,

       ¶ 16 ("The burden of proof and the initial burden of production in a motion for summary

       judgment lie with the movant." (Internal quotation marks omitted.)); Triple R Development, LLC

       v. Golfview Apartments I, L.P., 2012 IL App (4th) 100956, ¶ 12 ("Once the movant has met its

       initial burden of production, the burden shifts to the nonmovant."). Allstate failed to show that

       the facts from Osvaldo's criminal case—when liberally construed in favor of Hieber's estate—



                                                       -24-
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       conclusively show that Hieber's death was reasonably expected. At the very least, reasonable

       persons can draw divergent inferences from the factual gap left from Osvaldo's exercise of his

       Fifth Amendment right. See Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 424 (1998) ("where

       reasonable persons could draw divergent inferences from the undisputed material facts or where

       there is a dispute as to a material fact, summary judgment should be denied and the issue decided

       by the trier of fact"). Accordingly, the trial court should have denied Allstate's motion for

       summary judgment.

¶ 60          In the end, it may well be that Hieber's death was reasonably expected, but that cannot be

       decided as a matter of law on this record.

¶ 61                                                Unfairness

¶ 62          I believe the majority's application of the collateral estoppel doctrine is manifestly unfair.

¶ 63          Even with the threshold elements of the doctrine met, courts will not apply collateral

       estoppel to preclude relitigation "unless it is clear that no unfairness results to the party being

       estopped." Village of Crestwood v. Ironshore Specialty Insurance Co., 2013 IL App (1st)

       120112, ¶ 3. It is objectively unfair to estop a party from relitigating an issue it had no incentive

       to litigate in the earlier proceeding. Savickas, 193 Ill. 2d at 388. The State charged Osvaldo with

       a crime of recklessness and hence, Osvaldo had no incentive to prove that he did not act

       knowingly, the equivalent standard in Allstate's policy.

¶ 64          Alternatively, the majority's application constitutes non-mutual offensive collateral

       estoppel. Our supreme court has cautioned against indiscriminately applying nonmutual

       offensive collateral estoppel. Herzog v. Lexington Township, 167 Ill. 2d 288, 295-96 (1995).

       Unlike the doctrine of collateral estoppel in which a court's decision on an issue of fact or law

       necessary to a final judgment is deemed conclusive in a later proceeding involving a party to the



                                                        -25-
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       earlier litigation, under the doctrine of nonmutual offensive collateral estoppel, a nonparty to the

       earlier case makes "offensive" use of collateral estoppel against a party to the earlier case. Id.

¶ 65          As the Savickas court noted, this type of preclusion "could be unfair to the defendant ***

       if the defendant had more beneficial procedural opportunities available in the second suit which

       could readily change the result." Savickas, 193 Ill. 2d at 390. Because Osvaldo opted not to

       testify in his criminal trial, no evidence exists as to how he handled the gun at the time of

       discharge. His testimony may alter the result affirmed by the majority. We do not know whether

       Osvaldo had a finger on the trigger when it suddenly and unexpectedly discharged, or had the

       gun playfully pointed at Hieber's back.

¶ 66          Thus, I believe application of the collateral estoppel doctrine is inequitable.

¶ 67                                              Public Policy

¶ 68          Lastly, I consider the majority's reading of Allstate's policy to be contrary to the public

       policy of our state. In Illinois, public policy requires that we construe insurance policies in

       accordance with the "objectively reasonable expectations of the insured." (Internal quotation

       marks omitted.) Crawford Laboratories, Inc. v. St. Paul Insurance Co. of Illinois, 306 Ill. App.

       3d 538, 544 (1999); see Hoglund v. State Farm Mutual Automobile Insurance Co., 148 Ill. 2d

       272, 279 (1992).

¶ 69          It is objectively reasonable to expect homeowner's insurance to provide coverage where

       an insured accidently injures someone, as here. By reading the word "expected" to exclude

       accidental injuries resulting from reckless conduct, the majority contravenes the reasonable

       expectation of coverage and what the scope of the policy's intended coverage. See General Star

       Indemnity Co. v. Lake Bluff School District No. 65, 354 Ill. App. 3d 118, 127 (2004) ("Policy

       language must be read with reference to the facts at hand and in conjunction with the insured's



                                                        -26-
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       reasonable expectations and the policy's intended coverage."). Accordingly, the public policy of

       this State dictates a reversal.

¶ 70           Accordingly, I would reverse the grant of summary judgment and remand to the circuit

       court for further proceedings.




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