{¶ 35} I would respectfully dissent and affirm the decision of the court of common pleas that found the no contest pleas and convictions of arson and insurance fraud to be admissible and thereby preclude appellants from claiming insurance proceeds for the fire losses.
{¶ 36} In this case, it is undisputed that the plaintiff pleaded no contest to a charge of arson with purpose to defraud in violation of R.C. 2909.03(A)(2) and to insurance fraud, in violation of R.C. 2913.47(B)(1). He was found guilty of both of these charges.
{¶ 37} It is also undisputed that the property involved in the arson was the property covered by the insurance policy that is the subject of this dispute and that the contract of insurance excludes coverage for criminal acts and insurance fraud. *Page 322
{¶ 38} Despite having pleaded no contest and subsequently being found guilty and sentenced as a result of these charges, appellant sought payment from his insurer for the losses sustained as a result of the arson of which he was convicted after his no contest plea. The insurance company initiated this declaratory judgment action to determine its rights and obligations under its contract of insurance.
{¶ 39} The resolution of this conflict ultimately hinges upon the impact and consequences of uttering two words in a criminal proceeding: no contest. These three syllables are of some significance in a criminal proceeding, and even the United States Supreme Court has struggled with the concept as to precisely what a defendant does admit when he enters a no contest plea. In North Carolina v. Alford (1970),400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, the court surmised that the no contest plea possibly originated from the early medieval practice by which defendants wishing to avoid imprisonment would seek to make an end of the matter by offering to pay a sum of money to the king. Id. at 36, 91 S.Ct. 160,27 L.Ed.2d 162, fn. 8.
{¶ 40} The court further referenced an early 15th century case in which "a defendant did not admit his guilt when he sought such a compromise, but merely `that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine.'" Id.
{¶ 41} Regardless of the historical origins of the no contest plea, pursuant to Crim. R. 11(B)(2), a no contest plea is "an admission of the truth of the facts alleged in the indictment, information, or complaint."
{¶ 42} In his first assignment of error, appellant argues that his plea of no contest and subsequent conviction to the criminal charges should not be admissible. The United States Sixth Circuit Court of Appeals addressed this precise application of the no contest plea to a similar federal rule. Federal case law that interprets the federal rule, while not controlling, is persuasive. Myers v. Toledo,110 Ohio St.3d 218, 2006-Ohio-4353, 852 N.E.2d 1176, ¶ 18.
{¶ 43} Fed.R.Evid. 410 provides:
{¶ 44} "Evidence of a plea of * * * nolo contendere * * * is not admissible in any civil or criminal proceeding against the person who made the plea * * *."
{¶ 45} This language is virtually identical in relevant part to Crim. R. 11(B)(2), with the exception that the plea cannot be used against the person who made the plea as opposed to the Ohio Rule, which limits the application to the defendant.
{¶ 46} Crim. R. 11(B)(2) states:
{¶ 47} "[T]he plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding." *Page 323
{¶ 48} In Walker v. Schaeffer (C.A.6, 1988), 854 F.2d 138, the court stated:
{¶ 49} "We do not consider our conclusion to be barred by Fed.R.Evid. 410, which provides that evidence of `a plea of nolo contendere' is not, `in any civil or criminal proceeding, admissible against the defendant who made the plea.' This case does not present the kind of situation contemplated by Rule 410: the use of a nolo contendere plea against the pleader in a subsequent civil or criminal action in which he is the defendant. See, e.g., United States v.Manzella, 782 F.2d 533 (5th Cir.), cert. denied,476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986) (use of nolo contendere plea to impeach defendant in subsequent criminal prosecution). In this case, on the other hand, the persons who entered prior no-contest pleas are now plaintiffs in a civil action. Accordingly, use of the no-contest plea for estoppel purposes is not `against the defendant' within the meaning of Fed.R.Evid. 410. This use would be more accurately characterized as `for' the benefit of the `new' civil defendants, the police officers.
{¶ 50} "We find a material difference between using the nolo contendere plea to subject a former criminal defendant to subsequent civil or criminal liability and using the plea as a defense against those submitting a plea interpreted to be an admission which would preclude liability. Rule 410 was intended to protect a criminal defendant's use of the nolo contendere plea to defend himself from future civilliability. We decline to interpret the rule so as to allow the former defendants to use the plea offensively, in order to obtain damages, after having admitted facts which would indicate no civil liability on the part of the arresting police."
{¶ 51} Rule 410 of the Ohio Rules of Evidence is substantially identical to the federal rule. Evid. R. 410 states:
{¶ 52} "(A) Except as provided in division (B) of this rule, evidence of the following is not admissible in any civil or criminal proceeding against the defendant who made the plea or who was a participant personally or through counsel in the plea discussions:
{¶ 53} "(1) a plea of guilty that later was withdrawn;
{¶ 54} "(2) a plea of no contest or the equivalent plea from another jurisdiction;
{¶ 55} "(3) a plea of guilty in a violations bureau."
{¶ 56} The court in Levin v. State Farm Fire Cas. Co. (E.D.Mich. 1990), 735 F.Supp. 236, adopted the Walker interpretation of the rule. The facts of that case are identical to the case before the court today. The plaintiff entered a plea of no contest to a criminal charge of arson. Based upon that plea, he was found guilty and sentenced. The plaintiff then sought compensation for fire damage to his home. *Page 324
{¶ 57} The court was called upon to resolve the sole evidentiary issue of whether the plaintiffs nolo contendere plea may be admitted at trial. The court held that the insurer was not precluded from introducing evidence of the nolo contendere plea in the civil action brought by the individual who offered the nolo contendere plea in the prior criminal case.
{¶ 58} Likewise, I do not believe it to be a logical application of Crim. R. 11(B)(2) if the no contest plea were not admissible in this instance and would circumvent the unambiguous language of the rule. I would further suggest that it would be better public policy if Evid. R. 410(A) would be amended to explicitly prevent an individual who pleaded no contest to criminal charges from excluding evidence of that plea in an action in which the pleader seeks to establish a claim arising out of the crime of which the pleader was convicted. In that manner in future disputes, it would avoid a semantical discussion of the definition of the wordagainst and its relationship to the worddefendant.
{¶ 59} For the foregoing reasons, I would affirm the judgment of the trial court and find both of appellants' assignments of error not well taken.