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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

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. 



                                                 -2-                                            6775
 


----------------------- Page 3-----------------------

               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). 



                                               -3-	                                           6775 


----------------------- 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. 



                                                     -4-                                               6775
 


----------------------- 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). 



                                              -5-                                        6775
 


----------------------- Page 6-----------------------

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. 



                                                   -6-	                                               6775 


----------------------- Page 7-----------------------

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). 



                                                 -7-                                           6775
 


----------------------- 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. 



                                                    -8-                                                 6775 


----------------------- Page 9-----------------------

                 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). 



                                                  -13-	                                            6775
 


----------------------- Page 14-----------------------

"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"). 



                                                 -15-                                            6775
 


----------------------- Page 16-----------------------

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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----------------------- Page 17-----------------------

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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----------------------- Page 18-----------------------

                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."). 



                                                  -18-                                               6775 


----------------------- Page 19-----------------------

                 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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----------------------- Page 20-----------------------

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. 



                                                 -20-                                              6775 

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