concurring in part and dissenting in part.
I fully concur in the majority's reversal of the judgment upon the wrongful death claim. I dissent, however, from the affir-mance of the partial summary judgment as to liability.
Indiana Code 34-38-18-1, in effect at the time of the 1982 partial summary judgment proceeding, provided and still provides that a final judgment for a felony conviction "shall be admissible ... to prove...." It does not state that such judgment in and of itself establishes liability. In this regard, it is my view that the majority today errs in attributing to Hawkins v. Auto-Owners Insurance Co. (1993) Ind., 608 N.E.2d 1358, a holding that such a criminal judgment, under the statute "conclusively resolve[s]" the civil question.
My dissent is set forth with full recognition of the principle that retroactive application of a rule of evidence, as contained in Hawkins, supra, is appropriate in this case. See Farm Bureau Mutual Insurance Co. v. Dercach (1983) 3rd Dist. Ind.App., 450 N.E.2d 537. Furthermore, it is not essential to my view that Kimberlin here was not afforded an opportunity to submit facts in contravention of the "fact" of liability. See Hawkins, supra, (DeBru-ler, J. and Dickson, J. dissenting). Rather, my dissent is premised upon the following: (1) that the statute permits a felony judgment merely as evidence of disputed facts in a civil proceeding as opposed to conclu- ' sive establishment of the fact; (2) the absence of any evidence from the criminal proceeding with respect to the elements necessary for civil recovery;1 and (8) the related premise that absent any such evidence, the matter of proximate causation has not been shown.
As suggested by the majority and as per the affidavits of Kimberlin, proximate causation is not reflected in the documents which were submitted to the civil court from the criminal proceeding. This is so even if we were to consider the conclusory allegation in the criminal charge that Kim-berlin "maliciously damag[ed] and destroy[ed], by means of an explosive, real *53and personal property ... and which explosive resulted in personal injuries ...", (Record at 604) together with a conviction upon that count.
I do not express an opinion as to whether "proximate causation" in a civil setting is identical with "resulted in personal injuries" in a criminal setting. Suffice it to say that I believe an uncertainty in this regard militates against a summary judgment as to liability.
The judgments should be reversed in all respects and the cause remanded for trial upon Sandra's claim for personal injuries.
. In Hawkins, supra, the transcript of evidence from the criminal proceeding was before the civil court so as to provide factual predicate for the ultimate conclusion reached in the criminal case. No evidence in the criminal proceeding was submitted to the civil court here.