L’Affaire Condon: On Art, Death, and Insurance

An artist-photographer named Thomas Condon made the Cincinnati morgue his studio. His photographs of corpses, taken without the permission of the next of kin, led to civil and criminal proceedings. And, inevitably, an insurance case.

The principal theory of coverage was for “personal injury”. Condon’s carrier provided him a defense to the civil proceedings while filing suit for a declaration of no coverage.

The opinion reads as though the Ohio court of appeals was as offended by Condon’s artistic taste as by his conduct. Yet the court found an occurrence during the coverage period. State Farm Fire & Cas. Co. v. Condon, 163 Ohio App. 3d 584, 2005-Ohio-5208, 839 N.E.2d 464 (1st Dist. Sept. 30, 2005).

The court affirmed the denial of coverage, however, based on the exclusion for “willful violation of a penal statute.” Condon had been convicted of a crime for which an essential element was “recklessness,” defined under Ohio law to mean conduct that occurs when with “heedless indifference to the consequences, [a person] perversely disregards a known risk that such circumstances are likely to exist.” Id. ¶ 25. The court held that a “conviction for gross abuse of a corpse is a willful violation of a penal statute.” Id. ¶ 26.

As Disraeli is supposed to have said, one cannot leap a chasm in two bounds. But that is what the Ohio court did. The conviction established the recklessness required for the offense. The exclusion presented a separate question: whether the violation was “willful” within the meaning of the insurance policy. The court treated the first conclusion as answering the second.

The exclusion does not say “willful conduct that violates a penal statute.” It says “willful violation of a penal statute.” What must be willful—the conduct, or the violation? Calling the conduct reckless does not, without more, answer that question. The court needed to explain why the mental state sufficient for the crime also satisfied the policy’s exclusion. The conviction alone should not do the insurer’s work.

The denial of coverage operates as an additional punishment for Condon—and may diminish the compensation available to the families. But disapproval of the conduct cannot substitute for interpreting the policy. The irony is that, in finding an occurrence, the appeals court faulted the trial court for confusing the underlying wrong with the requirements of coverage. In applying the exclusion, it made much the same mistake.

Originally published in Insurance Scrawl on October 7, 2005. Republished with updated citation links and light editorial revisions. The analysis speaks as of the original publication date.

Related: Insurance Coverage · Marc Mayerson’s biography.

Topics: Personal Injury Coverage · Policy Exclusions · Policy Interpretation

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