Is there collateral estoppel in a wrongful death action arising from a defendant's second degree murder conviction?

4 In Clemmer v. Hartford Ins. Co., supra, 22 Cal.3d 865, 151 Cal.Rptr. 285, 587 P.2d 1098, following a second degree murder verdict against a defendant in a criminal trial, the victim's family filed a wrongful death suit seeking recovery from defendant's liability insurer. The insurance company defended the action on the ground the killing was a willful act and thus excluded from coverage. The insurance company claimed that the victims were collaterally estopped by defendant's second degree murder conviction from contending the killing was not willful; their claim was that the victim's family was in privity with the defendant because their rights derived from defendant's insurance policy. The court rejected the collateral estoppel claim and concluded that the requisite privity did not exist because the victim's family's interests in litigating the willfulness issue differed from those of the defendant at the criminal trial. The court, noting that at conclusion of the guilt phase of the criminal trial the defendant withdrew his previous plea of not guilty by reason of insanity, asserted that the withdrawal of the plea may have been a result of defendant's determination that the sentence to be served by him under a second degree murder conviction would be preferable to the possible consequence of his prevailing on an insanity plea, i.e., a state mental hospital commitment.