(concurring) — I agree that the homeowner’s insurance policy exclusion at issue distinguishes between injury reasonably expected to result from an insured’s intentional acts and those reasonably expected to result from criminal acts. The policy’s plain language does not support Mr. Peasley’s claims that the exclusion is ambiguous and that injury resulting from unintentional criminal acts is not excluded from coverage. Therefore, I agree with the majority that the criminal acts exclusion is not limited to intentional criminal acts.
However, I must disagree with the majority insofar as it suggests that any and all criminal acts are encompassed by the exclusion and insofar as it fails to follow the still sound analysis in Van Riper v. Constitutional Gov’t League, 1 Wn.2d 635, 96 P.2d 588, 125 A.L.R. 1100 (1939). There, a death benefit certificate issued by a mutual benevolent corporation was at issue. The court in Van Riper first stated that although the certificate was not, strictly speaking, an insurance policy, it was similar in nature and "its provisions with reference to liability for death benefits are subject to the same rules as are applicable to analogous provisions in policies of insurance.” Id. at 639 (citing treatises on insurance law). Then, applying the same rules of construction followed by the majority in this case, the court in Van Riper held that an exception to coverage in the certificate for death caused by "acts committed in criminal violation of the law” (emphasis omitted) excluded coverage only where death was caused by an act done "with malicious intent, from evil nature, or with a wrongful disposition to harm or injure other persons or property.” Id. at 640, 642.
Central to the court’s analysis in Van Riper is the principle that the language of an insurance policy is to be construed in its plain, ordinary, usual, and popular sense. Id. at 640. The Allstate policy at issue here must be construed by the same standard, and be given " 'a fair, *434reasonable, and sensible construction as would be given to the contract by the average person purchasing insurance.’ ” Key Tronic Corp. v. Aetna (CIGNA) Fire Underwriters Ins. Co., 124 Wn.2d 618, 627, 881 P.2d 201 (1994) (quoting Queen City Farms, Inc. v. Central Nat’l Co., 126 Wn.2d 50, 65, 882 P.2d 703, 891 P.2d 718 (1994)). Undefined terms are given their plain, ordinary, and popular meaning. Kish v. Insurance Co. of N. Am., 125 Wn.2d 164, 170, 883 P.2d 308 (1994).
The court in Van Riper examined the dictionary definitions of "crime” and "criminal,” which gave popular meanings of the words, and said that "[i]n consulting such works, the layman would receive the impression, if he did not already have it, that the term 'criminal’ implies a wicked or heinous act.” Van Riper, 1 Wn.2d at 641-42. The acts resulting in death in that case involved driving an automobile at excessive speed and failing to stop at a stop sign. The court reasoned:
To say that a layman, such as the registrant or the respondent, would apply the word "criminal” to the act of one who, under the circumstances here present, exceeded a speed limit or failed to stop before entering an arterial highway, is either to ignore the common usage of the term or else to imply that practically everyone who has ever driven an automobile is a criminal.
Id. at 642.
The sensible construction applied in Van Riper is just as sensible today. The policy at issue is a homeowner’s policy. Reviewing just a few criminal statutes shows why the average purchaser would not think "criminal acts” means any and all criminal acts in the technical sense. For example, under RCW 36.43.040 "[a]ny person violating the provisions of any building code or any fire regulation lawfully adopted by any board of county commissioners shall be guilty of a misdemeanor.” Under RCW 9.40.040 "[ejvery person who shall operate or permit to be operated in dangerous proximity to any brush, grass or other inflammable material, any spark-emitting engine or boiler which *435is not equipped with a modern spark-arrester, in good condition, shall be guilty of a misdemeanor.” Under RCW 9.03.020 it is a misdemeanor to permit an unused refrigerator to remain on the premises without the door removed or a portion of the latch mechanism removed. Under RCW 70.77.485 it is unlawful to possess fireworks in violation of RCW 70.77, and possession of less than one pound is a misdemeanor. Under a provision of the water code, RCW 90.03.400, it is a misdemeanor to use any water until after issuance of a permit to appropriate such water.
Thus, if injury resulting from any criminal act is excluded from coverage, injuries to a house guest falling on stairs with treads which are too shallowly built by the insured in violation of a building code will be excluded from coverage, injury to one burned in a fire caused by sparks from an engine without a proper spark arrester operated by an insured at home would be excluded from coverage, and an injury to a guest due to drowning in a hot tub or swimming pool where water was used prior to issuance of the proper permit to the insured under RCW 90.03.400 would be excluded from coverage. The average purchaser of insurance would no doubt be surprised to find that building stairs not according to code would be a criminal act barring coverage for his injured house guest under his homeowner’s policy. As one court said when faced with identical language in an insurance policy:
Modern statutory and regulatory provisions govern most facets of human behavior and social interaction and are so extensive that liability seldom arises apart from some manner of illegal conduct. . . . Indeed, statutes have so covered the field that fault can seldom occur that the conduct involved is not also considered a crime. It is illegal, in some instances, to possess a firearm, speed in automobiles, drive under the influence of alcohol, and let your pet outside without a leash.
Young v. Brown, 658 So. 2d 750, 754 (La. Ct. App.), writ denied, 662 So. 2d 1 (La. 1995).
In addition to my disagreement about what meaning the average purchaser of insurance would attribute to the *436"criminal acts” language, there is another reason why I do not believe that injury resulting from any and all criminal acts is excluded under this policy’s language. "[W]hen a judicial construction is placed upon words or phrases prior to the issuance of a policy which uses those words and phrases, it is presumed that construction is intended by the parties.” Queen City Farms, Inc. v. Central Nat’l Ins. Co., 126 Wn.2d 50, 91, 882 P.2d 703, 891 P.2d 718 (1994) (citing 2 George J. Couch, Insurance § 15:20, at 195-96 (2d ed. rev. vol. 1984)). Because the court treated the death benefit certificate in Van Riper as an insurance policy, I believe this principle applies in this case. Therefore, the court’s 1939 construction of the nearly identical term "criminal violation of law” to mean a serious criminal act is presumed to be the construction intended by the parties here.
The remaining question is whether Mr. Peasley’s conduct is a serious criminal act encompassed within the exclusion. The majority says that Mr. Peasley has failed to argue that the exclusion should be restricted to serious criminal acts, suggesting the issue is not before the court, but then says that even under Van Riper reckless endangerment in the second degree is a serious criminal act. First, because the court must interpret the policy as a matter of law, I do not agree that the court may consider only those interpretations advanced by the parties. Second, I believe the focus of the inquiry is not simply the statutory elements of the offense of which the insured has been convicted, but rather the plea and the insured’s statement on plea of guilty. There is considerable authority that a guilty plea, as opposed to a conviction following a full-fledged trial, is not conclusive in a subsequent civil proceeding. See, e.g., Safeco Ins. Co. of Am. v. McGrath 42 Wn. App. 58, 708 P.2d 657 (1985) (citing cases and holding specifically that Alford-type plea is not conclusive); Restatement (Second) of Judgments § 85 cmt. b (1980); but see, e.g., State Farm Fire & Cas. Co. v. Sallak, 140 Or. App. 89, 914 P.2d 697, review denied, 324 Or. 18 (1996) (citing cases). There is, however, no question that a guilty plea *437may be admissible as an admission. See McGrath, 42 Wn. App. at 62; see also ER 801(d)(2); 5 Karl B. Tegland, Washington Practice, Evidence § 139, at 503-04 & 504 n.9 (discussing ER 410 and explaining the rule does not preclude admissibility of statements made in connection with a guilty plea that is accepted and not withdrawn). Moreover, "[a] defendant who pleads guilty may be held to be estopped in subsequent civil litigation from contesting facts representing the elements of the offense” although this is a matter of estoppel and not issue preclusion. Restatement (Second) of Judgments § 85 cmt. b.
In Washington, the court shall not accept a guilty plea unless it is made voluntarily, competently, with an understanding of the nature of the charge and with an understanding of the consequences of the plea. Further, "[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.” CrR 4.2(d). Here, Mr. Peasley said in his statement on plea of guilty that "he recklessly discharged a firearm in a manner which caused a substantial risk of bodily harm or death to another person, Ardis Parker.” Clerk’s Papers at 60. Mr. Peasley’s admission contains facts which an average purchaser of insurance would view as serious criminal conduct. Thus, it is his admission, not the mere fact of conviction, which places his conduct within the scope of the criminal acts exclusion.
I concur in the result reached by the majority.
Guy and Alexander, JJ., concur with Madsen, J.