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Docket No. 87585-Agenda 11-March 2000.

AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Appellant, v. MICHAEL SAVICKAS et al., Appellees.

Opinion filed September 28, 2000.

JUSTICE FREEMAN delivered the opinion of the court:

Michael Savickas stands convicted of the first degree murder(720 ILCS 5/9-1(a)(1), (a)(2) (West 1992)) of Thomas S. Vinicky(Thomas). Elizabeth Vinicky, the administrator of Thomas's estate(Elizabeth), has sued Savickas for wrongful death and survival.Savickas tendered the defense of his suit to his insurer, AmericanFamily Mutual Insurance Company (American Family). AmericanFamily filed the instant declaratory judgment action to determinewhether it must defend or indemnify Savickas. American Familycontends that it should be excused from doing so because thepolicy did not apply to bodily injury "expected or intended by anyinsured." The circuit court of Cook County granted AmericanFamily summary judgment. Savickas and Elizabeth appealed, andthe appellate court reversed, with one justice dissenting. 304 Ill.App. 3d 614. We granted leave to appeal (177 Ill. 2d R. 315(a)),and now reverse.

BACKGROUND

Savickas shot and killed Thomas outside the New Gold CoastInn in March 1988. Elizabeth brought suit against Savickas in hercapacity as the administrator of Thomas' estate, eventually filingthe amended four-count complaint upon which American Familywas granted summary judgment. Count I of the amendedcomplaint, captioned "Intentional Tort/Murder/ Wrongful Death,"brought a claim under the wrongful death act (Ill. Rev. Stat. 1987,ch. 70, par. 1 et seq.) for Thomas' childrens' loss of affection.Count II, captioned "Intentional Tort/Murder Survival Action,"sought damages for Thomas' pain and suffering prior to his death.Count III, captioned "Negligence/Wrongful Death," was, likecount I, a claim under the wrongful death act. However, this countalleged that Savickas had been negligent in shooting Thomas, inthat he either negligently shot him, "negligently assessed a needfor self defense" when he shot him, or both. Count IV, captioned"Negligence/Survival Action," sought damages for Thomas' painand suffering prior to his death and contended that Savickas hadbeen negligent in the same manner alleged in count III.

Savickas tendered his defense to his homeowner's insurer,American Family. American Family paid for Savickas' defense.However, American Family also filed the instant declaratoryjudgment action against Savickas and Elizabeth, seeking adetermination that Savickas' acts were excluded from coverageand that as a result American Family owed him neither the duty toindemnify nor the duty to defend. Relying on language in itspolicy, American Family moved for summary judgment in thedeclaratory judgment action. The policy provides in relevant partthat American Family would

"pay, up to our limit, all sums for which any insured islegally liable because of bodily injury or property damagecaused by an occurrence covered by this policy. We willdefend any suit, even if the suit is groundless, false orfraudulent provided the suit resulted from bodily injury orproperty damage not excluded under this coverage."(Emphasis omitted.)

An "Exclusions" portion of the policy provided in part that theabove coverage should not apply to bodily injury or propertydamage "which is expected or intended by any insured." AmericanFamily provided the court with a certified copy of Savickas' April1990 conviction and a copy of the appellate court opinionaffirming that conviction (People v. Savickas, 230 Ill. App. 3d 322(1992)). American Family also attached excerpts from thetranscript of Savickas' testimony at his criminal trial. In thoseexcerpts Savickas admitted that the gun did not go offaccidentally. He testified to the effect that he intentionally pointedthe gun at the decedent and intentionally pulled the trigger whilethe gun was so aimed.

The trial court denied American Family's motion in October1994. Subsequently, in April 1995, the court dismissed thedeclaratory judgment action with leave to reinstate after finalresolution of Savickas' post-conviction petition, which was thenstill pending. The court reinstated the case on American Family'smotion in August 1996 after the dismissal of Savickas's post-conviction petition was affirmed on appeal.

In November 1996 the trial court reconsidered its earlierruling and granted summary judgment to American Family. Thecourt held that based on Savickas' conviction and the testimony hegave at his criminal trial, there was conclusive proof that Savickashad expected to cause harm. The court explicitly ruled only thatSavickas had "expected" the harm, not that he had "intended" it.The court stated that this ruling would have no impact on theunderlying case.

Savickas and Elizabeth appealed, and the appellate courtreversed. 304 Ill. App. 3d 614. The appellate court held that aninsurer's duty to defend is determined solely according to theallegations of the complaint in the underlying case. Since thenegligence allegations in the complaint were potentially coveredby the policy, the insurer had the duty to defend. The appellatecourt held that it was precluded from according estoppel effect toSavickas's criminal conviction by this court's decision inThornton v. Paul, 74 Ill. 2d 132 (1978). This appeal followed.

ANALYSIS

Here, American Family presents several alternative argumentsfor affirming the trial court's grant of summary judgment. In oneway or another, all of the arguments are based on Savickas'criminal conviction. Because we find that it is proper in this caseto accord estoppel effect to the criminal conviction, we need notconsider the other arguments raised by appellant.

I. Contract Construction

Initially, we note that the parties do not allege anycircumstance obligating the insurer to defend the insured otherthan the contract between them. Accordingly, the threshold issueis one of contract construction. The construction of anunambiguous insurance policy provision is a question of law, andthe policy's terms are to be applied as written unless those termscontravene public policy. Roberts v. Northland Insurance Co., 185Ill. 2d 262 (1998). The pertinent language in the contract in thiscase is relatively straightforward. American Family contracted to"defend any suit, even if the suit is groundless, false or fraudulentprovided the suit resulted from bodily injury or property damagenot excluded under this coverage." Excluded from coverage wasbodily injury or property damage "which is expected or intendedby any insured." Thus, according to the relevant terms of thecontract, American Family is obligated to defend Savickas, itsinsured, from any suit except suits for bodily injury or propertydamage which he expected or intended. The parties call to ourattention no public policy concern which might militate againstapplying this language as written.

II. Estoppel by Prior Criminal Conviction

American Family contends that it should not be required todefend or indemnify Savickas because his criminal prosecutionconclusively established that he intended the injury. AmericanFamily recognizes that this argument is contrary to this court'sdecision in Thornton v. Paul, 74 Ill. 2d 132 (1978), but urgesnevertheless that Savickas should be estopped, especiallyconsidering the fact that he was convicted of first degree murder.

Thornton was an appeal from a garnishment action by ajudgment creditor against an insurer. The creditor obtained adefault judgment on a negligence theory against the insured, thenattempted to collect the judgment from the insurer. There, as here,the insurer contended that its insured's criminal conviction shouldbe held to conclusively establish that the acts in question fellwithin a policy exclusion. We declined to find a criminalconviction constituted conclusive proof of the facts upon which itwas based. Rather, we held a conviction constituted only primafacie evidence, which would "preserve[ ] the opportunity to rebutthe factual basis of the conviction insofar as those facts areapplicable to the civil proceeding." Thornton, 74 Ill. 2d at 151. Forthe reasons stated below, we overrule this portion of Thornton.

In Thornton we stated that the "majority of courts whichpermit the use of criminal convictions as evidence in civil casesappear to hold *** that the criminal conviction is prima facieevidence of the facts. (See Annot., 18 A.L.R.2d 1287, 1301(1951).)" Thornton, 74 Ill. 2d at 149. This observation no longerholds true. As the Arkansas Supreme Court recently observed,"today in the vast majority of jurisdictions *** a criminalconviction now acts as a bar and collaterally estops the retrial ofissues in a later civil trial that were actually litigated in thecriminal trial." Zinger v. Terrell, 336 Ark. 423, 428, 985 S.W.2d737, 740 (1999) (collecting authorities and overruling its priorprecedent to allow estoppel effect to be accorded to criminalconvictions). Commentators have observed for years that thispractice has become increasingly accepted with the demise of themutuality requirement. See, e.g., T. Sawaya, Use of CriminalConvictions in Subsequent Civil Proceedings: Statutory CollateralEstoppel Under Florida and Federal Law and the Intentional ActExclusion Clause, 40 U. Fla. L. Rev. 479, 490-92 (1988); J. Thau,Collateral Estoppel and the Reliability of CriminalDeterminations: Theoretical, Practical, and Strategic Implicationsfor Criminal and Civil Litigation, 70 Geo. L.J. 1079, 1086-95(1982). See also 50 C.J.S. Judgments