State Farm Fire v. Fullerton ( 1997 )


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  •                               REVISED
                  IN THE UNITED STATES COURT OF APPEALS
    
                          FOR THE FIFTH CIRCUIT
    
    
    
                              No. 96-40078
    
    
    
    STATE FARM FIRE AND CASUALTY COMPANY,
                                                   Plaintiff-Appellant,
    
                                  versus
    
    VIRGIL L. FULLERTON, ET AL,
                                                             Defendants,
    
    W. BRYANT BUCKNER, Individually and as
    Representative of the Estate of Karen Jones,
    deceased; JACOB JOSEPH ANSLUM, Individually
    and as Representative of the Estate of
    Karen Jones, deceased; STEPHEN PAUL BUCKNER,
    Individually and as Representative of the
    Estate of Karen Jones, deceased,
                                                   Defendants-Appellees.
    
    
    
    
              Appeal from the United States District Court
               For the Eastern District of Texas, Beaumont
    
                              July 22, 1997
    
    Before KING and HIGGINBOTHAM, Circuit Judges, and LAKE,* District
    Judge.
    
    PATRICK E. HIGGINBOTHAM, Circuit Judge:
    
         This case requires us to surmise how a Texas court would rule
    
    on a question that has received diverse answers in those states
    
    
    
    
        *
         District Judge of the Southern District of Texas, sitting by
    designation.
    that have considered it: whether an insured’s guilty plea in a
    
    prior     criminal   proceeding    can    preclude    third   parties     from
    
    collecting on the insured’s policy.           More specifically, we must
    
    determine whether Texas law allows the heirs of the victims of a
    
    shooting to argue that the shooting was unintentional in spite of
    
    the fact that the insured pled guilty to murder.
    
         We    hold   that    the   insured’s    guilty   plea    satisfies    the
    
    requisites of issue preclusion.             We will reverse the district
    
    court’s declaration that the policy affords coverage and enter
    
    judgment in favor of State Farm.
    
                                         I.
    
         On July 7, 1992, Virgil L. Fullerton killed his wife, Artie
    
    Harris Fullerton, and his step-daughter, Karen Denby Jones, with a
    
    shotgun at their rural residence.         Fullerton’s precise motive has
    
    never come to light, but the family had experienced considerable
    
    domestic friction.       A number of dangerous incidents convinced him
    
    that his wife was trying to kill him.                 At one point, Artie
    
    Fullerton considered filing assault charges against her husband,
    
    and after her death her relatives asserted that Fullerton treated
    
    her cruelly. Whatever the story behind the slayings, Fullerton did
    
    not try to escape justice: he immediately called the sheriff’s
    
    department and went peaceably to jail.
    
         The state of Texas charged Fullerton with two counts of
    
    capital murder.      His attorney concluded that Fullerton had a good
    
    chance of acquittal if he pled not guilty by reason of insanity.
    
    But the attorney was reluctant to adopt that strategy because
    
    Fullerton was approaching seventy years of age and was in poor
    health.       Unlike an order of commitment to a psychiatric hospital,
    
    a conviction on something less than capital murder might allow
    
    Fullerton to return home if he entered the last stages of a
    
    terminal illness.          Based on this advice, Fullerton pled guilty to
    
    the lesser offense of simple murder.             The court sentenced him to
    
    life       imprisonment.      The   judgment    of   conviction   stated   that
    
    Fullerton was mentally competent, and the issue of his mental
    
    competence to form the intent to kill never surfaced before the
    
    court.       He remains incarcerated.
    
           The heirs of the two victims brought wrongful death actions
    
    against Fullerton in state court.              At the time of the shooting,
    
    Virgil and Artie Fullerton held a homeowners’ insurance policy that
    
    provided coverage for, among other things, personal liability for
    
    bodily injuries.       In general, the policy covered injuries “caused
    
    by an occurrence” and defined an “occurrence” as “an accident,
    
    including exposure to conditions, which results in bodily injury
    
    . . . during the policy period.”            It excluded, however, injuries
    
    “caused intentionally by or at the direction of the insured.”
    
    State Farm, the issuer of the policy, provided Fullerton a defense
    
    under a reservation of rights and filed this declaratory judgment
    
    action in federal court to establish that it has no duty to defend
    
    or indemnify Fullerton against the wrongful death claims.                   Its
    
    complaint listed Fullerton and the representatives of Karen Jones’s
    
    estate as defendants.1         Fullerton himself did not answer the suit.
    
           1
           The executrix of Artie Fullerton’s estate, Judith A. Pace,
    was also involved in the case throughout the trial. State Farm,
    however, succeeded in its motion for judgment notwithstanding the
    
                                            3
    He stated by affidavit: “I do not believe that insurance coverage
    
    exists   for   these   claims   because   any   action    taken   by   me   was
    
    intentional and intended to cause harm to Artie Harris Fullerton
    
    and Karen Denby Jones.” The other defendants—Stephen Paul Buckner,
    
    Jacob Joseph Anslum, and W. Bryant Buckner (collectively “the
    
    Buckners”)—moved for appointment of a guardian ad litem on the
    
    grounds that Fullerton is not mentally competent.                  The court
    
    granted the motion over State Farm’s objection.
    
         State Farm moved for summary judgment on the theories that
    
    Fullerton’s    conviction   collaterally     estops      the   Buckners     from
    
    litigating Fullerton’s intent and that the evidence that Fullerton
    
    shot his wife and Jones intentionally leaves no genuine issue of
    
    material fact.     In support, it attached transcripts and other
    
    documents from the criminal proceedings.           The court denied the
    
    motion without explanation.         It similarly denied State Farm’s
    
    motion for judgment as a matter of law at the close of evidence.2
    
         At trial, the Buckners presented expert opinion that Fullerton
    
    was “severely mentally ill” at the time of the shooting because he
    
    was suffering from a “delusional disorder” that caused him to
    
    believe that the victims wanted to kill him.              The jury credited
    
    this testimony and found that the killings were unintentional.
    
    State Farm appeals and asserts a number of errors, including
    
    
    
    verdict as to Pace because of a policy exclusion for bodily
    injuries sustained by insureds. Pace has not appealed that ruling.
         2
           State Farm also urged a judicial estoppel theory based on
    Anslum’s testimony at the sentencing phase of Fullerton’s trial.
    This theory is not before us on appeal.
    
                                         4
    evidentiary and instructional errors.        Because we agree with State
    
    Farm’s assertion that the Buckners are precluded from litigating
    
    the issue of Fullerton’s intent, we do not reach any other issues
    
    presented on appeal.
    
                                        II.
    
         Our inquiry into the preclusive effect of Fullerton’s guilty
    
    plea is governed by Texas law.      Angel v. Bullington, 
    330 U.S. 183
    ,
    
    191-93 (1947); In the Matter of King, 
    103 F.3d 17
    , 19 n.2 (5th Cir.
    
    1997), cert.     denied,   
    65 U.S.L.W. 3818
       (U.S.   June   16,   1997);
    
    Cleckner v. Republic Van & Storage Co., 
    556 F.2d 766
    , 768-69 (5th
    
    Cir. 1977).      “A party seeking to assert the bar of collateral
    
    estoppel must establish that (1) the facts sought to be litigated
    
    in the second action were fully and fairly litigated in the first
    
    action; (2) those facts were essential to the judgment in the first
    
    action; and (3) the parties were cast as adversaries in the first
    
    action.”   Sysco Food Services, Inc. v. Trapnell, 
    890 S.W.2d 796
    ,
    
    801 (Tex. 1994).    The third requirement, however, is subject to an
    
    important qualification: “[t]o satisfy the requirements of due
    
    process, it is only necessary that the party against whom the
    
    doctrine is asserted was a party or in privity with a party in the
    
    first action.”     Id. at 802 (emphasis in original).
    
         The second requirement need not detain us.             Fullerton pled
    
    guilty to a violation of Tex. Penal Code § 19.02.         By entering this
    
    plea, he admitted that he intended to kill his victims or at least
    
    
    
    
                                         5
    knew that his actions would cause their deaths.3    In other words,
    
    his convictions were valid because he admitted that the deaths were
    
    not accidents.     The convictions are inconsistent both with the
    
    Buckners’ suggestion that Fullerton’s delusions made the shootings
    
    acts of self-defense and with their contention that he was legally
    
    insane during the incident.    If the criminal proceedings decided
    
    anything, it was that the shootings were not “occurrences.”     See
    
    Dinnery v. State, 
    592 S.W.2d 343
    , 352-54 (Tex. Crim. App. 1980)
    
    (holding that a judicial confession in a guilty plea is itself
    
    sufficient evidence to support the crime charged).
    
         The first and third requisites for issue preclusion require
    
    more searching analysis.    We first take up the question of whether
    
    
         3
             Section 19.02(b) reads:
    
         A person commits an offense if he:
              (1) intentionally or knowingly causes the death of an
              individual;
              (2) intends to cause serious bodily injury and commits an
              act clearly dangerous to human life that causes the death
              of an individual; or
              (3) commits or attempts to commit a felony, other than
              manslaughter, and in the course of and in furtherance of
              the commission or attempt, or in immediate flight from
              the commission or attempt, he commits or attempts to
              commit an act clearly dangerous to human life that causes
              the death of an individual.
    
    Neither serious-bodily-injury murder nor felony murder, described
    in subsections (2) and (3) of the statute respectively, was at
    issue in the criminal proceedings, and the Buckners do not suggest
    otherwise. According to the indictment and the complaint, which
    State Farm filed as an exhibit with its motion for summary
    judgment, Fullerton “knowingly and intentionally cause[d] the
    death[s]” of his wife and Jones. Thus, a brief investigation of
    the pleadings, see Jones v. City of Houston, 
    907 S.W.2d 871
    , 874
    (Tex. App.—Houston [1st Dist.] 1995, writ denied), reveals that
    either Fullerton’s intent to kill or knowledge that he was killing
    were essential to his convictions.
    
                                       6
    a guilty plea counts as “full and fair litigation” under Texas law.
    
    Then we ask whether the preclusive effect of Fullerton’s plea
    
    extends to the Buckners; in the traditional language of collateral
    
    estoppel, we must determine whether the Buckners are in privity
    
    with Fullerton.
    
                                       III.
    
         If Fullerton had been convicted on the murder counts after a
    
    full trial, there would be no question that the jury’s factual
    
    finding that he killed intentionally would satisfy the full-and-
    
    fair-litigation prong of the test for issue preclusion.           Texas law
    
    collaterally estops an insured who has suffered a conviction for
    
    murder before a jury from arguing in a subsequent coverage dispute
    
    that the killing was not willful.          Francis v. Marshall, 
    841 S.W.2d 51
    , 54 (Tex. App.—Houston 1992, no writ) (imposing sanctions for
    
    frivolous litigation on an insured who sought to recover benefits
    
    after a murder conviction).      See also United States v. Thomas, 
    709 F.2d 968
    , 972 (5th Cir. 1983) (“Because of the existence of a
    
    higher standard of proof and greater procedural protection in a
    
    criminal prosecution, a conviction is conclusive as to an issue
    
    arising against the criminal defendant in a subsequent civil
    
    action.”).
    
         Unfortunately, Texas courts have not decided whether a guilty
    
    plea produces similarly preclusive effects in subsequent coverage
    
    litigation.    We   are   thus   in       the   uncomfortable   position   of
    
    speculating how a Texas court might answer a close question of
    
    first impression.   We may consult a variety of sources in making an
    
    
                                          7
    Erie-guess: dicta in Texas court decisions, the general rule on the
    
    issue, and the rules in other states that Texas might look to, as
    
    well as treatises and law journals.   Hill v. London, Stetelman, &
    
    Kirkwood, Inc., 
    906 F.2d 204
    , 207 (5th Cir. 1990). After reviewing
    
    case law from other jurisdictions, which is divided roughly evenly
    
    on the question, we have concluded that Texas would most likely
    
    follow the rule that a valid guilty plea serves as a full and fair
    
    litigation of the facts necessary to establish the elements of the
    
    crime and thus that a Texas court would preclude Fullerton from
    
    contesting State Farm’s assertion that he acted intentionally.
    
                                    A.
    
         A survey of the preclusive effects of guilty pleas in other
    
    jurisdictions gives us little guidance.    Even if Texas wanted to
    
    follow the general rule, it would be unable to identify a majority
    
    view with any confidence.
    
         Some courts treat a conviction pursuant to a guilty plea in
    
    the same way they would treat a conviction imposed by a jury after
    
    a full-blown trial.    An especially thorough and well-reasoned
    
    justification for this approach appears in Ideal Mutual Ins. Co. v.
    
    Winker, 
    319 N.W.2d 289
     (Iowa 1982).   In Winker, an off-duty deputy
    
    sheriff shot and killed his girlfriend and pled guilty to second-
    
    degree murder.    The administrator of the girlfriend’s estate
    
    brought a wrongful death action against the deputy, who was insured
    
    under a law enforcement officers’ comprehensive liability policy.
    
    The insurer in turn brought a declaratory judgment action to
    
    establish that it had no duty to defend the deputy because of an
    
    
                                    8
    exclusion for injuries “resulting from a criminal act.” The deputy
    
    admitted that the plea could be used as evidence of his intent, but
    
    he insisted that he should be allowed to present countervailing
    
    evidence that the shooting was not criminal because it was the
    
    result of a nervous breakdown.
    
          Overruling a prior case, Book v. Datema, 
    131 N.W.2d 470
    
    (1964), the Iowa Supreme Court prohibited “relitigation concerning
    
    an essential element of a crime when the accused has tendered a
    
    guilty plea, which necessarily admits the elements of the crime,
    
    and the court has ascertained that a factual basis exists for the
    
    plea and accepts it.”       Winker, 319 N.W.2d at 295.          The court
    
    considered the apparently contrary rule announced in comment b to
    
    §   85 of   the   Restatement   (Second)   of   Judgments   (1982),   which
    
    indicates that preclusion “does not apply where the criminal
    
    judgment was based on a plea of nolo contendere or a plea of
    
    guilty.”    According to the court, this technical rule does little
    
    work in light of the statement several lines later that
    
          [a] defendant who pleads guilty may be held to be
          estopped in subsequent civil litigation from contesting
          facts representing the elements of the offense.
          However, under the terms of this Restatement such an
          estoppel is not a matter of issue preclusion, because
          the issue has not actually been litigated, but is a
          matter of the law of evidence beyond the scope of this
          Restatement.
    
    Unable to find any cases utilizing the American Law Institute’s
    
    notion of “evidentiary estoppel,” the court “conclude[d] that the
    
    conclusive effect given to a guilty plea . . . is founded on issue
    
    preclusion rather than estoppel.”          Winker, 319 N.W.2d at 293-94
    
    (citing especially Prosise v. Haring, 
    667 F.2d 1133
     (4th Cir.
    
                                        9
    1981), aff’d, 
    462 U.S. 306
    , 
    103 S. Ct. 2368
    , 
    76 L. Ed. 2d 595
    
    (1983)).
    
          The same result obtained in State Mutual Ins. Co. v. Bragg,
    
    
    589 A.2d 35
     (Me. 1991), in which a man pled guilty to murdering his
    
    wife and son and attempting to murder his daughter.         When he
    
    entered the pleas, he was the defendant in a wrongful death suit
    
    brought by the personal representative of his deceased wife.    The
    
    court held that the guilty pleas precluded any recovery from the
    
    man’s insurer or the personal representative because he had a “full
    
    and fair opportunity to litigate in the prior suit.”      Id. at 37
    
    (quoting Hossler v. Barry, 
    403 A.2d 762
    , 769 (Me. 1979)).        It
    
    explained that “murder and attempted murder are crimes in which the
    
    intent to cause, or the expectation of causing injury inheres.”
    
    Id.
    
          Similarly, in State Farm Fire & Cas. Co. v. Sallak, 
    914 P.2d 697
     (Or. Ct. App.), rev. denied, 
    920 P.2d 551
     (Or. 1996), the court
    
    held that a man who pled guilty to resisting arrest and assaulting
    
    a police officer could not argue in a declaratory judgment action
    
    that his insurer should provide coverage because the injuries he
    
    inflicted were not “expected or intended.”      Like the Winker and
    
    Bragg courts, the Sallak court found it especially significant that
    
    the criminal proceedings included “a colloquy with [the judge] to
    
    satisfy the court that the plea was voluntarily and intelligently
    
    made.”   Id. at 700.   “Because the factual basis rule requires that
    
    the trial court be convinced that the plea is founded on fact, we
    
    conclude that acceptance of [the insured’s] plea is the equivalent
    
    
                                      10
    of a judicial determination of each of the material elements of
    
    [his] crime and satisfies the ‘actually litigated’ requirement of
    
    issue preclusion.”           Id.   See also Bower v. O’Hara, 
    759 F.2d 1117
    ,
    
    1128 (3d Cir. 1985) (Sloviter, J., dissenting) (“[T]here seems to
    
    be almost no deviation from the general principle that when a
    
    defendant      has    pled    guilty      in    a   federal    criminal    action      the
    
    defendant will be estopped in a subsequent civil suit by or against
    
    the United States government or its agencies from contesting issues
    
    encompassed      by    the     prior      guilty     plea.”);     United      States    v.
    
    $31,697.59 Cash, 
    665 F.2d 903
    , 906 (9th Cir. 1982) (precluding a
    
    litigant who pled guilty to a federal crime from relitigating facts
    
    in a subsequent forfeiture hearing, in spite of any failure to
    
    ensure that the guilty plea had a factual basis); Colorado Farm
    
    Bureau Mut. Ins. Co. v. Snowbarger, 
    934 P.2d 909
    , 911 (Colo. Ct.
    
    App. 1997) (applying issue preclusion to an insured who pled guilty
    
    to sexual assault because “intent is an issue that, when finally
    
    decided in a previous criminal prosecution, cannot be relitigated
    
    so as to avoid the intentional acts exclusion of an insurance
    
    policy”); State Farm Fire & Cas. Co. v. Groshek, 
    411 N.W.2d 480
    ,
    
    484 (Mich. Ct. App. 1987) (“[A]n insured’s plea of guilty to a
    
    crime involving intentional conduct . . . dispels any triable
    
    factual issue regarding the insured’s intention or expectation to
    
    cause injury to the victim.”); State v. Gonzalez, 
    641 A.2d 1060
    ,
    
    1061   (N.J.    Super.       Ct.   App.    Div.     1994)     (“[O]ne   who    has     been
    
    convicted of a crime, whether by way of trial or a plea of guilty,
    
    should not be permitted to re-litigate, in another forum, the fact
    
    
                                                   11
    of his guilt.”), aff’d, 
    667 A.2d 684
     (N.J. 1995); Merchants Mut.
    
    Ins. Co. v. Arzillo, 
    472 N.Y.S.2d 97
     (N.Y. App. Div. 1984) (holding
    
    that the recent expansion of collateral estoppel warrants applying
    
    it even when a litigant has previously entered an Alford-type plea
    
    and insisted at sentencing that he was framed); Commercial Union
    
    Ins. Co. v. Mauldin, 
    303 S.E.2d 214
    , 217 (N.C. Ct. App. 1983)
    
    (“[The insured’s] guilty plea to second degree murder was an
    
    admission that he had the general intent to do the act, and it
    
    excluded him from coverage under the insurance policy.”). See also
    
    In the Matter of Nassau Ins. Co., 
    577 N.E.2d 1039
     (N.Y. 1991)
    
    (applying issue preclusion to third-party claimants who sought to
    
    contest the intent of an insured who waived his right to a jury
    
    trial on a murder charge and was convicted of manslaughter after
    
    raising    only   the    successful    defense     of   extreme     emotional
    
    disturbance).
    
         But   some   courts    refuse    to   treat   guilty   pleas   as   fully
    
    litigated matters for the purposes of collateral estoppel.                The
    
    Supreme    Judicial     Court   of   Massachusetts,     for   example,    has
    
    distinguished convictions that resulted from full-blown trials from
    
    convictions that resulted from guilty pleas and has held that
    
    collateral estoppel does not apply in the latter situation.                The
    
    court explained that allowing re-litigation of facts underlying
    
    guilty pleas would compromise neither of the central goals of issue
    
    preclusion: efficiency and fairness.
    
          When a defendant pleads guilty, waiving his right to a
          trial by jury, scarce judicial and prosecutorial
          resources are conserved. While the judge taking the
          plea must satisfy himself that there is a factual basis
    
                                          12
          for a charge, he need not find that the defendant
          actually committed the crime to which he is pleading
          guilty. Cf. North Carolina v. Alford, 
    400 U.S. 25
    , 37-
          38 & n.10, 
    91 S. Ct. 160
    , 167 & n.10, 
    27 L. Ed. 2d 162
          (1970).    Furthermore, because there have been no
          findings, a conviction after a plea of guilty does not
          present the possibility of inconsistent factual
          determinations.    For collateral estoppel purposes,
          those factors justify treating a conviction after a
          guilty plea differently from a conviction after a
          trial.
    
    Aetna Cas. & Sur. Co. v. Niziolek, 
    481 N.E.2d 1356
    , 1364 (Mass.
    
    1985). The number of states agreeing with Massachusetts law rivals
    
    the number that disagrees.          See, e.g., Rawling v. City of New
    
    Haven, 
    537 A.2d 439
    , 445 (Conn. 1988) (stating in dicta that “[a]s
    
    a general rule, a criminal judgment based on a plea of nolo
    
    contendere or a plea of guilty has no preclusive effect in a
    
    subsequent civil action”); Continental Cas. Co. v. Maguire, 
    471 P.2d 636
     (Colo. Ct. App. 1970) (concluding that an insured was
    
    insane and thus acted unintentionally in spite of a prior plea of
    
    guilty to simple assault); Teitelbaum Furs, Inc. v. Dominion Ins.
    
    Co., 
    375 P.2d 439
    , 441 (Cal. 1962) (in bank) (“Considerations of
    
    fairness   to   civil   litigants    and   regard   for   the   expeditious
    
    administration of criminal justice . . . combine to prohibit the
    
    application of collateral estoppel against a party who, having
    
    pleaded guilty to a criminal charge, seeks for the first time to
    
    litigate his cause in a civil action.” (dicta)), cert. denied, 
    372 U.S. 966
    , 
    83 S. Ct. 1091
    , 
    10 L. Ed. 2d 130
     (1963); Brohawn v.
    
    Transamerica Ins. Co., 
    347 A.2d 842
    , 848 (Md. 1975) (“A plea of
    
    guilty to a criminal charge . . . may be rebutted or explained in
    
    the subsequent civil case in which it is admitted.”); Glens Falls
    
    
                                         13
    Group Ins. Corp. v. Hoium, 
    200 N.W.2d 189
    , 192 (Minn. 1972)
    
    (allowing an insured to enter evidence of his reasons for pleading
    
    guilty to criminal assault); Prudential Property & Cas. Ins. Co. v.
    
    Kollar, 
    578 A.2d 1238
    , 1240 (N.J. Super. Ct. App. Div. 1990) (“We
    
    have    applied    collateral    estoppel    only   where    the    conviction
    
    definitively      and   unambiguously    established   the   nature    of    the
    
    insured’s intent and where such conviction was the result of a
    
    trial, not a plea.”); Stidham v. Millvale Sportsmen’s Club, 
    618 A.2d 945
    , 954 (Pa. Super. Ct. 1992) (noting that because of a
    
    unilateral plea bargain, the insured’s “intent was never fully,
    
    fairly and definitively litigated”), appeal denied, 
    637 A.2d 290
    
    (Pa. 1993); Safeco Ins. Co. v. McGrath, 
    708 P.2d 657
    , 660 (Wash.
    
    Ct. App. 1985) (refusing to apply issue preclusion because of the
    
    “powerful, coercive forces” confronting an insured who insists that
    
    he acted in self-defense and chose to enter an Alford-type plea to
    
    assault charges), rev. denied, 105 Wash.2d 1004 (1986).               Although
    
    many of these opinions cite section 85 of the Restatement (Second)
    
    of Judgments, they do not conduct the Winker court’s careful
    
    inquiry into the Restatement’s notion of estoppel.
    
           A Texas court could approach this body of law in a variety of
    
    ways.    The fact that the record supports Fullerton’s claim that he
    
    had a viable insanity defense distinguishes this case from many of
    
    the    decisions   applying     collateral   estoppel.       In    Winker,   for
    
    example, the court noted that the insured “[a]pparently . . .
    
    decided that the chances of prevailing on an insanity defense were
    
    slight given the medical experts’ opinions.”             319 N.W.2d at 297.
    
    
                                            14
    Many of these cases emphasize the statutory duty of state judges to
    
    ensure that the plea rests on a factual basis before accepting it.
    
    See, e.g., Bragg, 589 A.2d at 37; Sallak, 914 P.2d at 700.                       See
    
    also Gonzalez, 641 A.2d at 1063 (rejecting the California and
    
    Maryland approaches in part because those states, unlike New
    
    Jersey,    “permit      a   defendant   to    plead    guilty     and   yet   assert
    
    innocence”).       Texas statutes do not prohibit Alford-type pleas;
    
    they require only that “[n]o plea of guilty or plea of nolo
    
    contendere shall be accepted by the court unless it appears that
    
    the defendant is mentally competent and the plea is free and
    
    voluntary.”      See TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (West 1989);
    
    Allen v. State, 
    827 S.W.2d 69
    , 70 (Tex. App.—Houston [1st Dist.]
    
    1992, no writ) (explaining that a court may allow a criminal
    
    defendant to withdraw exculpatory evidence and enter a guilty
    
    plea).    The judge who accepted Fullerton’s plea did not engage him
    
    in a discussion of the facts of the case; the court fulfilled its
    
    duty to confirm that Fullerton was mentally competent and that his
    
    plea was free and voluntary, but it did not prod the possibility
    
    that Fullerton had a viable defense.               Because Fullerton’s plea did
    
    not lead to an airing of the facts, a Texas court might conclude
    
    that the reasoning in the second line of cases should govern and
    
    might    hold    that   the   plea   did     not   qualify   as    full   and   fair
    
    litigation of Fullerton’s intent.
    
         On    the    other     hand,    Fullerton’s      affidavit     acknowledging
    
    responsibility and his decision not to respond to State Farm’s
    
    declaratory judgment act suggest that a belief in his own innocence
    
    
                                            15
    did not color his guilty plea.    If the acknowledgment of guilt was
    
    not an Alford-type plea, a Texas court might find it highly
    
    reliable.    The uncontradicted circumstances do not suggest self-
    
    defense, and Fullerton’s behavior immediately after the shootings
    
    is not characteristic of someone who, “as a result of severe mental
    
    disease or defect, did not know that his conduct was wrong.”        TEX.
    
    PENAL CODE § 8.01 (West 1994).    See also Love v. State, 
    909 S.W.2d 930
    , 943 (Tex. App.—El Paso 1995, writ ref’d) (affirming a jury
    
    finding of sanity, in spite of a history of mental illness, where
    
    a lucid defendant shot family members without provocation).
    
         In short, the unsettled law in other jurisdictions leaves us
    
    unenlightened on how Texas would resolve the question of full and
    
    fair litigation.    Perhaps the more recent decisions tend to favor
    
    treating a guilty plea as the equivalent of a conviction after a
    
    trial.      But   nothing   approaching   a   consensus   has   emerged.
    
    Predicting how a Texas court might act requires us to glean what
    
    few hints we can from the tenor of relevant Texas opinions.
    
                                       B.
    
         We ground our conclusion that Texas would regard Fullerton’s
    
    plea as full and fair litigation on three observations.           First,
    
    Texas has not hesitated to give default civil judgments preclusive
    
    effect, in spite of the cursory nature of the adjudication leading
    
    to those judgments. Second, language in a 1949 Texas Supreme Court
    
    case suggests a willingness to give guilty pleas to murder charges
    
    heavy weight in later civil proceedings. And finally, Texas courts
    
    have indicated that Texas issue-preclusion rules are virtually
    
    
                                       16
    identical to the issue-preclusion rules followed in federal courts,
    
    which routinely give guilty pleas preclusive effect.
    
          Texas courts ask not whether the issue to be precluded could
    
    have been litigated, but whether it was actually litigated —
    
    whether it was “adequately deliberated and firm.”               Mower v. Boyer,
    
    
    811 S.W.2d 560
    , 563 (Tex. 1991).              Three factors are especially
    
    important in analyzing the question of full and fair litigation:
    
    “1) whether the parties were fully heard, 2) whether the court
    
    supported its decision with a reasoned opinion, and 3) whether the
    
    decision was subject to appeal or was in fact reviewed on appeal.”
    
    Rexrode v. Bazar, 
    937 S.W.2d 614
    , 617 (Tex. App.—Amarillo 1997, no
    
    writ).      These factors are in keeping with the rule that a Mary
    
    Carter agreement can cast doubt on the fairness of an earlier
    
    judgment and can give a trial court reason to use its discretion to
    
    re-open     issues   because    of   misgivings     about   the   “quality   or
    
    extensiveness of the procedures” in the earlier suit. See Scurlock
    
    Oil   Co.   v.   Smithwick,    
    724 S.W.2d 1
    ,   7   (Tex.   1986)   (quoting
    
    Restatement (Second) of Judgments § 28(3) (1982)).
    
          These general principles do not counsel against our finding
    
    that Fullerton’s criminal proceedings included a full and fair
    
    airing of his intent.          The judge gave Fullerton a full hearing;
    
    indeed, he did just what Fullerton asked him to do, which was
    
    accept his guilty plea.        There was no need for a reasoned opinion.
    
    And Fullerton had the right to appeal his conviction.               Unlike the
    
    Mary Carter agreement in Scurlock Oil, Fullerton’s plea did not
    
    skew the proceedings against him.             He cannot take advantage of
    
    
                                           17
    abstract   legal   statements   designed    to   protect   parties   “whose
    
    procedural predicament is not of their own making.”          Trapnell, 890
    
    S.W.2d at 805.
    
         We are reluctant to place much weight on the fact that, for
    
    Texas civil litigants, “[a]n agreed judgment . . . has the same
    
    degree of finality and binding force as one rendered by a court at
    
    the conclusion of adversary proceedings.”             Forbis v. Trinity
    
    Universal Ins. Co., 
    833 S.W.2d 316
    , 319 (Tex. App.—Fort Worth 1992,
    
    writ dism’d) (citing Barrientes v. Harlandale Indep. School Dist.,
    
    
    764 S.W.2d 28
    , 29 (Tex. App.—San Antonio 1989, writ denied)).           The
    
    consequences of a capital murder conviction are difficult to
    
    compare    to   the    consequences    of   losing   a     civil   lawsuit.
    
    Consequently, it is difficult to map the reasons for entering a
    
    guilty plea onto the reasons for settling with an opponent in a
    
    civil lawsuit.        Unlike a civil defendant, Fullerton could not
    
    threaten the state with a counterclaim or bring in a third-party
    
    defendant.      The differences between plea agreements and civil
    
    settlements make us unsure whether Texas courts would give them the
    
    same preclusive effects.
    
         Rather than ground our Erie-guess on generalities, we turn to
    
    two specific Texas opinions.     First, the case of Mendez v. Haynes
    
    Brinkley & Co., 
    705 S.W.2d 242
     (Tex. App.—San Antonio 1986, writ
    
    ref’d n.r.e.), suggests that Texas courts do not understand “full
    
    and fair” litigation to require an active courtroom confrontation.
    
    The owners of an apartment building paid $358 to an insurance
    
    recording agent, who took responsibility for insuring the building
    
    
                                          18
    against fire.      When the building burned down and the owners
    
    discovered they were uninsured, they sued the recording agent and
    
    Haynes   Brinkley,   the    general    insurance    agent   with    whom   the
    
    recording agent was supposed to have done business.           The recording
    
    agent did not answer the suit, and the owners dismissed Haynes
    
    Brinkley in order to obtain a final default judgment against the
    
    recording agent.     When the owners brought a second suit against
    
    Haynes Brinkley,     they   were   faced   with    the   obstacle   of   issue
    
    preclusion, for the default judgment stated that the recording
    
    agent never contacted Haynes Brinkley, which meant that Haynes
    
    Brinkley could not be liable.         Although the court of appeals did
    
    not discuss the full-and-fair-litigation requirement, it did not
    
    hesitate to hold that the owners could not prevail because “the
    
    judgment states unequivocally that the premises were not insured.”
    
    Id. at 246.4
    
        4
          We do not agree with the interpretation of Mendez offered in
    In re Turner, 
    144 B.R. 47
     (E.D. Tex. Bankr. 1992). The Turner
    court noted that the recording agent in Mendez gave a deposition
    and thus inferred that the parties actually agreed to the first
    judgment. Id. at 52. As an agreed settlement, the judgment in
    Mendez would fit into the rule announced in comment e to § 27 of
    the Restatement (Second) of Judgments: “In the case of a judgment
    entered by confession, consent, or default, none of the issues is
    actually litigated . . . [unless] the parties have entered an
    agreement manifesting such an intention.”      The court in Turner
    followed In re Stowell, 
    113 B.R. 322
     (W.D. Tex. Bankr. 1990), and
    held that Texas courts would follow § 27 of the Restatement in
    spite of Mendez.
         The passing reference to the recording agent’s deposition in
    Mendez does not indicate that he consented to the judgment against
    him.   Even if he did consent, that fact played no role in the
    court’s application of issue preclusion. See also Greater Houston
    Transp. Co. v. Wilson, 
    725 S.W.2d 427
    , 430 (Tex. App.—Houston [14th
    Dist.] 1987, writ ref’d n.r.e.) (giving preclusive effect to a
    default judgment entered as a sanction for failing to appear for
    depositions).
    
                                          19
          Mendez       involved    factors   not   present       in    this    case.      The
    
    building owners, in contrast to Fullerton, initiated the first suit
    
    themselves.         More importantly, they did not face the agonizing
    
    decision of whether to preserve the possibility of winning a
    
    subsequent suit at the cost of risking a capital murder conviction.
    
    Nevertheless,        both     the   default    judgment       in    Mendez      and   the
    
    conviction in this case were the results of one-sided litigation.
    
    In both, a court entered judgments that flowed from the failure of
    
    one   side    to    assert    any   defense.         This    treatment     of   default
    
    judgments suggests that in Texas “full and fair litigation” need
    
    not involve contested issues.            See also Rexrode, 937 S.W.2d at 617
    
    (“For the purposes of collateral estoppel, an issue was ‘actually
    
    litigated’     when     it    was   properly   raised,       by    the    pleadings    or
    
    otherwise, and it was submitted for determination, and determined.”
    
    (citing Van Dyke v. Boswell, O’Toole, Davis & Pickering, 
    697 S.W.2d 381
    , 384 (Tex. 1985))).
    
          Although several decades old, at least one other Texas case
    
    shows an inclination to credit the facts underlying guilty pleas.
    
    In Greer v. Franklin Life Ins. Co., 
    221 S.W.2d 857
     (Tex. 1949), a
    
    woman stabbed and killed her husband and pled guilty to “murder
    
    without      malice.”        Although    she   was    a     beneficiary      under    her
    
    husband’s insurance policy, a Texas statute barred recovery where
    
    a beneficiary willfully caused the insured’s death. Members of the
    
    husband’s family brought suit against the wife and the insurer, and
    
    the wife in turn asserted her claim to proceeds.                         At trial, the
    
    
    
    
                                              20
    wife admitted that the killing was not in self-defense.          The Texas
    
    Supreme Court held that she could not recover on the policy.
    
          Whatever be the rule as to admissibility or effect in
          a civil suit such as this of a criminal conviction of
          the crime in issue, we think the wholly unqualified
          admission of a plea of guilty with the other evidence
          above mentioned and in the absence of contrary
          evidence, established intent and illegality as a matter
          of law.
    
    221 S.W.2d at 860.
    
         The Greer court’s explanation of why the wife was ineligible
    
    for benefits contains an ambiguity. We are not certain whether the
    
    court meant to rely on the plea as especially convincing evidence
    
    or   as   a   prior   preclusive   judgment.         The    references   to
    
    “admissibility” and “other evidence” suggest that the case does not
    
    turn on issue preclusion.     But the passage is consistent with the
    
    notion    that   especially   reliable    guilty    pleas    automatically
    
    establish certain facts “as a matter of law.”              Even if we read
    
    Greer’s holding in terms of preclusion, it involves defensive,
    
    rather than offensive, issue preclusion.           Nevertheless, it is a
    
    clue that Texas law takes seriously guilty pleas to murder when
    
    they bear on a subsequent coverage dispute.
    
         Texas courts have indicated that there is “little difference”
    
    between Texas and federal rules of issue preclusion. Trapnell, 890
    
    S.W.2d at 801 n.7; Upjohn Co. v. Freeman, 
    906 S.W.2d 92
    , 101 n.7
    
    (Tex. App.—Dallas 1995, no writ).       We thus take comfort in the fact
    
    that our case law has invoked a plea of guilty as a ground for
    
    collateral estoppel.    In Brazzell v. Adams, 
    493 F.2d 489
     (5th Cir.
    
    1974), a party who pled guilty to selling heroin sought damages
    
    
                                       21
    from state officials under § 1983 on an entrapment theory.                    We
    
    asserted that “the general rule is that collateral estoppel applies
    
    equally whether the prior criminal adjudication was based on a jury
    
    verdict or a guilty plea.”           Id. at 490.      Other circuits agree.
    
    See, e.g., Fontneau v. United States, 
    654 F.2d 8
    , 10 (1st Cir.
    
    1981) (barring a party who pled guilty to federal tax evasion from
    
    re-litigating the issue of fraud in a subsequent civil penalty
    
    proceeding); Ivers v. United States, 
    581 F.2d 1362
    , 1367 (9th Cir.
    
    1978) (“While a non-frivolous argument to the contrary might well
    
    have been made to a finder of fact had Ivers chosen to proceed to
    
    trial, we must take his plea of guilty to be an admission of each
    
    and   every   essential    element    of    the   [federal]   crime     charged,
    
    including the element of knowledge and willfulness.”); Nathan v.
    
    Tenna Corp., 
    560 F.2d 761
    , 763 (7th Cir. 1977) (“Nathan is estopped
    
    by his guilty plea to federal mail fraud charges from denying that
    
    his participation     in   the   commission-splitting         scheme    involved
    
    illegal conduct.”).
    
          We conclude that a Texas court would treat Fullerton’s guilty
    
    plea as full and fair litigation of his intent to kill his wife and
    
    step-daughter.
    
                                          IV.
    
          Fullerton is content to go without coverage.                     This case
    
    requires us to determine whether his plea counts as full and fair
    
    litigation not for him, but for the Buckners, who hope to receive
    
    proceeds under Fullerton’s policy.                Although we recognize the
    
    dangers of formalism tied up in the word “privity,” see Wright,
    
    
                                          22
    Miller & Cooper, 18 Federal Practice & Procedure § 4448 (1981), we
    
    follow Texas courts in continuing to use that label in our inquiry
    
    into whether Texas law allows State Farm to extend the preclusive
    
    effect of the murder conviction from Fullerton to the heirs of
    
    Fullerton’s victims.
    
         “[P]rivity is not established by the mere fact that persons
    
    may happen to be interested in the same question or in proving the
    
    same state of facts.”       Benson v. Wanda Petroleum Co., 
    468 S.W.2d 361
    , 363 (Tex. 1971).         But privity does exist if one party
    
    “deriv[es   its]   claims   through    a   party   to   the   prior   action.”
    
    Amstadt v. U.S. Brass Corp., 
    919 S.W.2d 644
    , 653 (Tex. 1996); Neel
    
    v. HECI Exploration Co., 
    942 S.W.2d 212
    , 217 n.1 (Tex. App.—Austin
    
    1997, no writ).    See also CLS Associates v. A____ B____, 
    762 S.W.2d 221
    , 224 (Tex. App.—Dallas 1988, no writ) (“It is sufficient that
    
    the party in the second suit be a successor-in-interest to the
    
    party in the first suit.”).5
    
         State Farm’s assertion of privity would fail if the Buckners
    
    could assert their rights directly against State Farm.            A New York
    
    court, for example, has refused to find privity between co-insured
    
    spouses when one spouse has pled guilty to an intentional crime.
    
    Fernandez v. Cigna Property & Cas. Ins. Co., 
    590 N.Y.S.2d 925
     (App.
    
    
            5
               We do not discern any difference in Texas courts’
    understanding of privity in the contexts of claim preclusion and
    issue preclusion. Neel, for example, concerned issue preclusion
    and applied privity rules delineated in Amstadt without remarking
    that that case concerned claim preclusion.          Similarly, CLS
    Associates cited Benson to support its privity analysis in spite of
    the fact that claim preclusion was at stake in CLS Associates and
    issue preclusion was at stake in Benson.
    
                                          23
    Div. 1992).   The court distinguished the rights of insured parties
    
    from the rights of uninsured victims such as the Buckners, who
    
    under New York statute derive their right to sue the insurer from
    
    the rights of the insured.      See D’Arata v. New York Central Mut.
    
    Fire Ins. Co., 
    564 N.E.2d 634
    , 637 (N.Y. 1990) (“Plaintiff, by
    
    proceeding directly against [the insurer], does so as subrogee of
    
    the insured’s rights and is subject to whatever rules of estoppel
    
    would apply to the insured.”).
    
         The Iowa Supreme Court has held that a direct action statute
    
    defeats privity between an insured who pleads guilty to a criminal
    
    offense and the victim of the crime.       In AID Ins. Co. v. Chrest,
    
    
    336 N.W.2d 437
     (Iowa 1983), an insurer argued that a police officer
    
    who was shot by its insured could not bring suit after the insured
    
    pled guilty to assault with intent to kill.             But Iowa’s direct
    
    action statute   “gives   the   insured   person   an    interest   in   the
    
    liability insurance policy adverse to both the insurer and insured
    
    at the time of the injury.”     Id. at 440 (quoting Farm & City Ins.
    
    Co. v. Coover, 
    225 N.W.2d 335
    , 337 (Iowa 1975)).           The purpose of
    
    the direct action statute, according to the court, is to prevent
    
    agreements between the insurer and the insured from compromising a
    
    victim’s ability to force the insurer to pay for the harm caused by
    
    the insured. By making a victim’s rights against an insurer direct
    
    rather than derivative, Iowa law prevents the insurer from using
    
    the insured’s admission as a defense.
    
         Because the Buckners are not themselves insureds, and because
    
    Texas has not enacted a “direct action statute,” see Jilani v.
    
    
                                       24
    Jilani, 
    767 S.W.2d 671
    , 675-76 (Tex. 1988) (Mauzy, J., concurring),
    
    the Buckners must win a judgment against Fullerton before claiming
    
    entitlement to insurance proceeds.      Fullerton’s policy states
    
    explicitly that “no action with respect to [personal liability] can
    
    be brought against [State Farm] until the obligation of the insured
    
    has been determined by a final judgment or agreement.”     When an
    
    insurance contract contains a no-action clause, “a third party’s
    
    right of action against the insurer does not arise until he has
    
    secured such an agreement or a judgment against the insured.”
    
    Great American Ins. Co. v. Murray, 
    437 S.W.2d 264
    , 265 (Tex. 1969).
    
    See also Angus Chemical Co. v. IMC Fertilizer, Inc., 
    939 S.W.2d 138
    
    (Tex. 1997) (per curiam).   In other words, State Farm’s duty is to
    
    pay its insured; third parties can recover proceeds under the
    
    policy only insofar as their rights derive from Fullerton’s right
    
    to recover proceeds.
    
         Thus, although Texas courts have not yet decided specifically
    
    whether tort plaintiffs who seek insurance funds are in privity
    
    with an insured who pleads guilty to murder, we hold that under
    
    Texas law the Buckners are in privity with Fullerton because of the
    
    derivative nature of their recovery under the policy.6
    
          6
             We do not understand Dairyland County Mut. Ins. Co. v.
    Childress, 
    650 S.W.2d 770
    , 773-74 (Tex. 1983), as following a
    contrary rule. In Childress, the insurer obtained a declaratory
    judgment that its policy did not cover the insured.      When the
    insurer sought to use this judgment to preclude a suit by third
    parties claiming under the policy, the Texas Supreme Court held
    that the third parties were not in privity with the insured and
    thus that issue preclusion did not apply.      The basis for the
    holding, however was that the insurer failed to join the third
    parties as required by the Uniform Declaratory Judgment Act, which
    states that “no declaration shall prejudice the rights of persons
    
                                    25
         This result places Texas among the bulk of other jurisdictions
    
    that have considered the question.         See, e.g., Aetna Cas. & Sur.
    
    Co. v. Jones, 
    596 A.2d 414
    , 421, 425 (Conn. 1991) (holding that
    
    “[w]hen the victim of an insured defendant derives her rights to
    
    collect insurance proceeds directly from the rights of the insured
    
    defendant,” they are in privity by virtue of “shar[ing] a legal
    
    interest”); Tradewind Ins. Co. v. Stout, ___ P.2d ___, ___, 
    1997 WL 222335
    , at   *9   (Haw.   Ct.   App.)    (giving   a   criminal   conviction
    
    preclusive effect against the insured’s victim because “any ‘right’
    
    which [the victim] has to the proceeds of the insurance policy
    
    derive[s] solely from [the insured’s] right to coverage under the
    
    policy”), cert. denied, 
    937 P.2d 922
     (Haw. 1997); Safeco Ins. Co.
    
    of America v. Yon, 
    796 P.2d 1040
    , 1044 (Idaho Ct. App. 1990)
    
    (“[T]he wrongful-death claimants’ rights are only as good as the
    
    rights that [the convicted insured] can assert against Safeco under
    
    the insurance contract.”); State Mut. Ins. Co. v. Bragg, 
    589 A.2d 35
     (Me. 1991) (affirming a declaratory judgment that an insured had
    
    no duty to defend where its insured murdered family members and was
    
    sued by the victims’ personal representative); Aetna Life & Cas.
    
    Ins. Co. v. Johnson, 
    673 P.2d 1277
    , 1280-81 (Mont. 1984) (giving a
    
    criminal conviction preclusive effect against a third party because
    
    
    not parties to the proceeding.” Id. at 774; Tex. Rev. Civ. Stat.
    Ann. art. 2524-1 § 11 (Vernon 1965) (current version codified at
    Tex. Civ. Prac. & Rem. Code § 37.006(a) (West 1997)).        Unlike
    Childress, Fullerton’s case does not present an insurer that failed
    to obtain declaratory relief against all interested parties. Cf.
    Opheim v. Interamerican Ins. Exchange, 
    430 N.W.2d 118
    , 121 (Iowa
    1988) (distinguishing Childress based on Iowa’s declaratory
    judgment act, which does not require joinder of all interested
    parties).
    
                                        26
    the third party’s rights derived from the convicted insured’s
    
    insurance and because of an identity of interest at the time of the
    
    criminal trial); New Jersey Manufacturers Ins. Co. v. Brower, 
    391 A.2d 923
    , 926 (N.J. Super. Ct. App. Div. 1978) (finding privity in
    
    part because the victim “stood in the shoes” of the insured for the
    
    purposes of recovering proceeds); In the Matter of Nassau Ins. Co.,
    
    
    577 N.E.2d 1039
    , 1040 (N.Y. 1991) (following D’Arata’s holding that
    
    criminal convictions bar third parties from claiming insurance
    
    proceeds); State Farm Fire & Cas. Co. v. Reuter, 
    700 P.2d 236
    , 241
    
    (Or. 1985) (holding that the victim of a sexual assault was in
    
    privity with her assailant because of “her status as a claimant and
    
    potential judgment creditor” of the convicted insured).
    
         Decisions to the contrary are both less numerous and less
    
    recent.    See Clemmer v. Hartford Ins. Co., 
    587 P.2d 1098
    , 1103
    
    (Cal. 1978) (refusing to apply issue preclusion to the holders of
    
    a wrongful death judgment where the convicted insured may have
    
    withdrawn a plea of insanity for strategic reasons); Massachusetts
    
    Property Ins. Underwriting Assoc. v. Norrington, 
    481 N.E.2d 1364
    ,
    
    1367-68 (Mass. 1985) (“Allowing the application of issue preclusion
    
    against the insured, but not against the injured person, does no
    
    violence   to   the   substantive   principle   that   an   injured   party
    
    succeeds only to the insured’s rights against the insurer.”).           See
    
    also Prudential Property & Cas. Ins. Co. v. Kollar, 
    578 A.2d 1238
    ,
    
    1241 (N.J. Super. Ct. App. Div. 1990) (“[A]n innocent third-party
    
    victim . . . should not be estopped from effectively recovering
    
    
    
    
                                        27
    against a    defendant   and    his   insurer   when   the   defendant,   for
    
    whatever reason, elects to enter a plea of guilty.” (dicta)).
    
    
    
                                          V.
    
         Texas   courts    have    also   recognized   that   at   bottom   issue
    
    preclusion is driven by equitable principles.                Therefore, they
    
    reserve the discretion to decline to apply it when the results
    
    would be unfair.      Scurlock Oil Co. v. Smithwick, 
    724 S.W.2d 1
    , 7
    
    (Tex. 1986).   The relevant fairness factors derive from Parklane
    
    Hosiery Co. v. Shore, 
    439 U.S. 322
    , 330-31 (1979):
    
          1. Whether the use of collateral estoppel will reward
          a plaintiff who could have been joined in the earlier
          suit but chose to “wait and see.” . . .
    
          2. Whether the defendant in the first suit had the
          incentive to litigate that suit fully and vigorously.
          . . .
    
          3. Whether the second suit will afford the defendant
          procedural opportunities available in the first suit
          that could cause a different result. . . .
    
          4. Whether the judgment in the first suit is
          inconsistent with any other earlier decision. . . .
    
    Finger v. Southern Refrig. Serv., 
    881 S.W.2d 890
    , 896 (Tex. App. -
    
    Houston [1st Dist.] 1994, writ denied). Of these, only the second
    
    suggests that preclusion might be unfair.          We have already decided
    
    that the first proceeding included a full and fair litigation of
    
    Fullerton’s intent.      The state’s agreement to forego the death
    
    penalty gave Fullerton less incentive to litigate vigorously.             But
    
    he still had a strong incentive to defend himself insofar as the
    
    facts permitted.      The second of these four factors may not be as
    
    decisive as it could be, but we do not think that would convince a
    
                                          28
    Texas court to exercise its discretion to refuse to apply issue
    
    preclusion.
    
         The Texas Supreme Court has isolated three goals of issue
    
    preclusion: the conservation of judicial resources, the protection
    
    of defendants from repetitive lawsuits, and the prevention of
    
    inconsistent judgments. Sysco Food Services, Inc. v. Trapnell, 
    890 S.W.2d 796
    , 803-04 (Tex. 1994).               See also Finger, 881 S.W.2d at
    
    894-95 (citing Benson v. Wanda Petroleum Co., 
    468 S.W.2d 361
    , 363
    
    (Tex. 1971)).     Although the second of these is not relevant, the
    
    first and     third    counsel   in     favor   of   giving   Fullerton’s   plea
    
    preclusive effect.          Treating the question of intent as resolved
    
    will not only cut short declaratory judgment suits such as this
    
    one; it will also expedite the adjudication of victims’ suits
    
    against an insured who has admitted his responsibility for a
    
    criminal act.    As the results in the trial court here demonstrate,
    
    the danger of inconsistent judgments looms large.                 We recognize
    
    that criminal defendants sometimes enter guilty pleas for reasons
    
    other than the truth of the charges against them.                      But it is
    
    disquieting     when    a    judicial    system      tolerates   the   continued
    
    incarceration of those defendants and at the same time awards civil
    
    damages based on findings that those defendants did not commit all
    
    the elements of the crimes for which they are being punished.
    
    Texas issue-preclusion policies indicate that we should avoid that
    
    result if possible.
    
         Although the Buckners do not raise the issue, we recognize
    
    that the Due Process Clause places limits on the use of offensive,
    
    
                                             29
    non-mutual issue preclusion. “It is a violation of due process for
    
    a judgment to be binding on a litigant who was not a party or a
    
    privy and therefore has never had an opportunity to be heard.”
    
    Parklane Hosiery, 439 U.S. at 327 n.7 (citing Blonder-Tongue
    
    Laboratories, Inc. v. University of Ill. Found., 
    402 U.S. 313
    , 329
    
    (1971)).    We cannot say, however, that the operation of Texas law
    
    in this case intrudes on the Buckners’ due process rights.              Perhaps
    
    there could be circumstances in which state law definitions of
    
    “full and fair opportunity to litigate” and “privity,” see Hardy v.
    
    Johns-Manville Sales Corp., 
    681 F.2d 334
    , 338 (5th Cir. 1982), lead
    
    to results that are constitutionally intolerable.                But this is not
    
    such a case. The Buckners’ inability to recover insurance proceeds
    
    does not deprive them of a legal remedy.                 They can still win
    
    damages from Fullerton, although Fullerton may not be able to
    
    satisfy    the   judgment   fully.        Within   the   structure     of   Texas
    
    insurance law, Fullerton’s plea did not deprive the Buckners of
    
    their day in court, for they never had a legal right to assert
    
    against State Farm.     Finding a violation of due process here would
    
    mean requiring Texas to alter an insurance-entitlement system that
    
    has been in place for decades in many states.              We are not prepared
    
    to say that Texas’s efforts to protect insurance companies from
    
    suits by third parties interferes with third parties’ rights to
    
    assert claims to proceeds.
    
         The   judgment   in    favor    of   the   Buckners    is    REVERSED,   and
    
    judgment is RENDERED in favor of State Farm.
    
    
    
    
                                          30
    

Document Info

DocketNumber: 96-40078

Filed Date: 8/21/1997

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (64)

Fielder v. King , 103 F.3d 17 ( 1997 )

Angel v. Bullington , 330 U.S. 183 ( 1947 )

North Carolina v. Alford , 400 U.S. 25 ( 1970 )

Blonder-Tongue Laboratories, Inc. v. University of Ill. ... , 402 U.S. 313 ( 1971 )

Parklane Hosiery Co. v. Shore , 439 U.S. 322 ( 1979 )

Haring v. Prosise , 462 U.S. 306 ( 1983 )

billy-floyd-pete-brazzell-v-bobby-adams-etc-no-73-3279-summary , 493 F.2d 489 ( 1974 )

John J. Cleckner and Ruth Cleckner, His Wife v. Republic ... , 556 F.2d 766 ( 1977 )

Marvin B. Nathan and Natalie J. Nathan, D/B/A Marvin B. ... , 560 F.2d 761 ( 1977 )

gerald-ronald-ivers-aka-james-ivan-thurston-v-united-states-of-america , 581 F.2d 1362 ( 1978 )

Albert H. Fontneau v. United States , 654 F.2d 8 ( 1981 )

united-states-v-3169759-cash-and-2850-cash-deposited-for-the-release , 665 F.2d 903 ( 1982 )

john-franklin-prosise-v-gilbert-a-haring-lieutenant-henry-w-allen , 667 F.2d 1133 ( 1981 )

C. A. Hardy v. Johns-Manville Sales Corporation , 681 F.2d 334 ( 1982 )

United States v. John H. Thomas, Lonnie D. Clark and John H.... , 709 F.2d 968 ( 1983 )

Robert Bower v. Terrence O'hara, Doris Sparks and Sparks ... , 759 F.2d 1117 ( 1985 )

winston-hill-and-ila-mae-hill-as-co-administrators-of-the-estate-of-harvey , 906 F.2d 204 ( 1990 )

Aetna Life and Cas. Ins. Co. v. Johnson , 673 P.2d 1277 ( 1984 )

State Farm Fire & Casualty Co. v. Sallak , 140 Or. App. 89 ( 1996 )

SAFECO INSURANCE v. McGrath , 42 Wash. App. 58 ( 1985 )

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