OHIO SUPREME COURT

RULES OF EVIDENCE PRECLUDE THE USE OF AN INSURED'S CRIMINAL "NO CONTEST" PLEA IN SUBSEQUENT DECLARATORY JUDGMENT LITIGATION


Elevators Mut. Ins. Co. v. J. Patrick O'Flaherty's, Inc., Slip Opinion No. 2010-Ohio-1043.

Syllabus of the Court:

Crim.R. 11(B)(2) and Evid.R. 410(A) prevent the use of convictions based on no contest pleas in an action for declaratory judgment for insurance coverage.

The Policy Language

In this case, the O’Flaherty’s policy provides coverage for loss or damage
from fire but expressly excludes coverage for “loss or damages caused directly or indirectly by any of the following ... Dishonest or criminal acts by you...”

In addition, the coverage part of the policy was subject to the following conditions:
“A. Concealment, Misrepresentation or Fraud[.] This Coverage Part is void in any case of fraud by you as it relates to this Coverage Part at any time. It is also void if you or any other insured, at any time, intentionally conceal or misrepresent a material fact concerning * * * [a] claim under this Coverage Part.”

Elevators Mutual denied O’Flaherty’s claim for the fire loss and seeks to use Heyman’s convictions for arson and insurance fraud as conclusive evidence to deny coverage for the loss.

We must determine whether the convictions are admissible in this action for declaratory judgment.

The "No Contest" Plea and Crim.R. 11(B) and Evid.R. 410(A)

Richard Heyman pleaded no contest to the charges of arson and insurance fraud and was convicted. Crim.R. 11(A) provides that a defendant may plead no contest in a criminal matter. “The plea of no contest is not an admission of defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.” Crim.R.11(B)(2).

Evid.R. 410(A)(2) echoes this same principle. A plea of no contest or the equivalent plea from another jurisdiction “is not admissible in any civil or criminal proceeding against the defendant who made the plea.” Id.

Elevators Mutual challenges the application of Evid.R. 410(A),stating that the rule applies only to a plea of no contest, not the resulting conviction. The Heymans, however, argue that the prohibition against admission of a no contest plea likewise applies to the conviction that follows. The Heymans also argue that Evid.R. 803(22) acknowledges that Evid.R. 410 prohibits the admission of evidence of a final judgment entered upon a plea of no contest.

The purpose behind the inadmissibility of no contest pleas in subsequent proceedings is to encourage plea bargaining as a means of resolving criminal cases by removing any civil consequences of the plea. Mapes, 19 Ohio St.3d at 111, 19 OBR 318, 484 N.E.2d 140; Rose v. Uniroyal Goodrich Tire Co. (C.A.10, 2000), 219 F.3d 1216, 1220. The rule also protects the traditional characteristic of the no contest plea, which is to avoid the admission of guilt. Id.

The prohibition against admitting evidence of no contest pleas was intended generally to apply to a civil suit by the victim of the crime against the defendant for injuries resulting from the criminal acts underlying the plea. Allstate Ins. Co. v Simansky (Conn.Super.1998), 45 Conn.Supp. 623, 628, 738 A.2d 231.

The plain language of Evid.R. 410(A) prohibits admission of a no contest plea, and the prohibition must likewise apply to the resulting conviction. To find otherwise would thwart the underlying purpose of the rule and fail to preserve the essential nature of the no contest plea.