(dissenting). The majority opinion takes the case away from the jury. I would not. I would affirm the decision of the court of appeals and the circuit court affirming the jury verdict.
This case, like N.N. v. Moraine Mutual Ins. Co., 153 Wis. 2d 84, 450 N.W.2d 445 (1990), involves the interpretation of the intentional injury exclusion in homeowners insurance policies. The number of cases in which courts are called upon to interpret and apply this exclusion is surprisingly large.1 Obviously the wording of *116the intentional injury exclusion has caused much litigation, and it is unfortunate that insurers have not revised the language of the exclusion to reduce the number of disputes.
When interpreting the intentional injury exclusion, courts have attempted to balance two public policy objectives: (1) the public and the victim should benefit from the insured's being covered under a homeowners insurance policy, and yet (2) a person should not be allowed to insure against harms he or she intentionally causes, thereby acquiring a license to engage in such activities.
In my opinion, the majority's holdings in this case, and in N.N. v. Moraine Mutual Ins. Co., represent a significant departure from the balance we struck in prior case law interpreting an insurer's liability under the intentional injury exclusion.
The majority opinion claims that it is employing the two-prong subjective test this court adopted in Pachucki v. Republic Insurance Co., 89 Wis. 2d 703, 708, 278 N.W.2d 898 (1979), to determine whether the insured's acts are excluded from coverage as "expected or intended" bodily injury. The court held in that case that the fact finder must determine that the insured intended to act and intended to injure for the insured to be excluded from coverage.
*117Under the first prong of the test, the fact finder must determine whether the insured intended the act. The majority opinion in this case, as in N.N., holds that the intent to commit the act is established in the civil action to recover under the insurance policy, as a matter of law, by proof of the insured's guilty plea to and conviction of an intentional crime. The majority opinion concludes that the guilty plea and conviction definitively prove intent to act, regardless of the testimony in either the criminal or civil case that may cast doubt on the subjective intent of the offender. Thus the majority opinion states that "Moe's plea serves as an admission that he intentionally acted to aid and abet the commission of the armed robbery." At 111. See also N.N., 153 Wis. 2d at 84, 90-91, 93-94,. 96-97. I conclude that this holding deviates from Pachucki. See my dissent in N.N.
Under the second prong of the Pachucki test, the fact finder must determine whether the insured intended to injure the victim. The majority opinion finds, as a matter of law, that bodily injury is a natural and probable consequence of armed robbery.2 The majority also *118holds that the actor is presumed, as a matter of law, to have intended the natural and probable consequence of the act, that is, the actor is presumed, as a matter of law, to have intended the injury.3 The majority opinion appears to establish a mandatory presumption of intent to injure in all cases in which the offender is guilty of armed robbery.4
Holding that intent to injure has been established as a matter of law in an armed robbery is in marked contrast to the Pachucki case. There the fact finder determined intent to injure. The facts giving rise to the injury were undisputed. Despite some testimony to the contrary, each defendant admitted to attempting to hit the *119victim with a greening pin and cause stinging. The defendants denied they intended to inflict the serious eye injury that resulted. This court affirmed the circuit court's factual finding of intent to injure from this record as not contrary to the great weight and clear preponderance of the evidence.
In this case, in response to a special verdict question, the jury responded that Terrence Moe did not expect or intend to injure Steven Raby. The jury specifically found that it was Moe's negligence in participating in the armed robbery that was a cause of injury to Raby. The court of appeals concluded that evidence presented at trial was sufficient to support the jury's verdict that Moe's negligence caused the injury. See Raby v. Moe, 149 Wis. 2d 370, 381, 441 N.W.2d 263 (Ct. App. 1989). Nevertheless the majority opinion overturns the jury's verdict, concluding that, as a matter of law, Moe intended to injure Raby. The majority opinion rests simply on the newly constructed mandatory presumption that intent to injure will be inferred from armed robbery.
In summary I conclude that the majority opinion adopts an objective test, retreating from Pachucki's subjective intent to injure test.51 believe that the test originally set forth in Pachucki remains the better means of *120evaluating whether coverage for intentional injury in a particular case should be excluded under homeowners insurance policies. An injury can be unintentional even though the acts that caused the injury were intentional. If the actor who does an intentional act does not intend injury, the actor is covered by the policy. Only intended injuries flowing from an intentional act are excluded under an intentional acts provision in a homeowners policy.
Because I believe that the court should follow the rationale of Pachucki, I dissent.
See cases discussed in Annot., Criminal Conviction as Rendering Conduct for Which Insured Convicted within Provision of Liability Insurance Policy Expressly Excluding Coverage for *116Damage or Injury Intended or Expected by Insured, 35 A.L.R.4th 1063 (1985); Annot., Construction and Application of Provision of Liability Insurance Policy Expressly Excluding Injuries Intended or Expected by Insured, 31 A.L.R.4th 957 (1984); Annot., Liability Insurance: Assault as an "Accident," or Injuries Therefrom as "Accidentally" Sustained, within Coverage Clause, 72 A.L.R.3d 1090 (1976); Annot., Liability Insurance: Specific Exclusion of Liability for Injury Intentionally Caused by Insured, 2 A.L.R.3d 1238 (1965).
In this case Moe pled guilty to second-degree murder. This plea is an admission that the victim's death was a natural and probable consequence of the commission of the armed robbery. See majority at 106. This plea is not an admission that Moe intended to injure anyone. The jury instructions for felony murder advise the jury that to convict they must find that the act is dangerous to human life but that "it is not required . . . that there be any intent or design to effect death." Wis. JI — Criminal, Instruction 1120, p. 3 (1966). Nevertheless the majority opinion infers as a matter of law that Moe had a subjective intent to injure.
Unfortunately, the majority opinions in both this case and N.N. fail to discuss the effect of their holdings on Crowall v. Heritage Mutual Ins. Co., 118 Wis. 2d 120, 346 N.W.2d 327 (Ct. App. 1984), and Kirchefski v. American Family Mutual Ins. Co., *118132 Wis. 2d 74, 390 N.W.2d 76 (Ct. App. 1986), two cases dealing with collateral estoppel and with the effect of convictions of crime on a civil action involving insurance policies.
Although the majority opinion refers to the facts of Moe's participation in the armed robbery, as I read the opinion the facts, except for the guilty plea and conviction, are irrelevant to the holding of the case. The majority opinion concludes "that some type of bodily injury is so substantially certain to occur during the commission of an armed robbery that the law will infer an intent to injure on behalf of the insured actor without regard to his claimed intent." At 114-115. The majority opinion makes this inference regardless of whether the insured is the actor, aider or abettor, or conspirator in the armed robbery.
A mandatory presumption is a rule of substantive law, and, as LaFave and Scott point out, a mandatory presumption "would in effect destroy the concept of intention and replace it entirely with negligence. This is because the defendant would be held to have intended whatever a reasonable man would have foreseen as probable." LaFave and Scott, Criminal Law sec. 28, p. 203 (1972).
Thus the majority opinion adopts a negligence standard in interpreting and applying the intentional injury exclusion in the policy, even though the majority opinion interprets the policy as excluding only intentionally inflicted harms.
The majority opinion appears to be mixing intent to inflict injury (a subjective test — the actor desires to cause the consequences of his act, knows the consequences are certain, or knows the consequences are substantially certain), with reckless infliction of injury (an objective test — the actor has intentionally done an act of an unreasonable character in disregard for a known or obvious risk highly probable to follow with conscious indifference for the consequences) and negligent infliction of injury (an objective test — the actor fails to do what a reasonable person would do under the same or similar circumstances). The difference among the three is probability of harm. See Restatement (Second) of *120Torts sec. 8A, p. 15 (1965); Prosser and Keeton, Torts 33-36 (5th ed. 1984).
Prosser and Keeton (pp. 169-170) discuss the difference as follows:
It is helpful to an understanding of the negligence concept to distinguish it from intent. In negligence the actor does not desire to bring about the consequences which follow, nor does he know that they are substantially certain or occur, or believe they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable person in his position to anticipate them, and to guard against them .... As the probability of injury to another, apparent from the facts within the acting party's knowledge, becomes greater, his conduct takes on more of the attributes of intent, until it approaches and finally becomes indistinguishable from that substantial certainty of harm that underlies intent.
The Pachucki case and K.A.G. v. Stanford, 148 Wis. 2d 158, 434 N.W.2d 790 (Ct. App. 1988), carefully distinguish among the three kinds of consequences of intentional acts. I think the holding in this case fails to make the distinction.