The principal theory of coverage was for "personal injury". Condon's carrier provided him a defense to the civil proceedings while filing suit for a declaration of no coverage.

Judging by its tone, the Ohio court of appeals was offended by Condon's artistic taste and ill-conceived project, yet found that in the period of coverage there was an occurrence. State Farm Fire & Cas. Co. v. Condon (Ohio Ct. App. Sept. 30, 2005).

The court affirmed the denial of coverage, however, based on the exclusion for "willful violation of a penal statute." Condon had been convicted of a crime for which an essential element was "recklessness," defined under Ohio law to mean conduct that occurs when with "heedless indifference to the consequences, [a person] perversely disregards a known risk that such circumstances are likely to exist." Slip op. at 9. The court held that a "conviction for gross abuse of a corpse is a willful violation of a penal statute." Id.

As Disraeli is supposed to have said, one cannot leap a chasm in two bounds, but this is what the Ohio court did. Whether there was a violation of a penal statute required willful (read, reckless) conduct. But the exclusion does not apply to any violation where willfulness is an essential element of the crime; rather, the exclusion applies if the violation was willful, which is not the same thing. The exclusion does not say no coverage for "willful conduct that violates any penal law." The exclusion applies if a willful violation occurs, i.e., a violation of law that was conscious and intentional (or perhaps, reckless depending on the definition of that term). But Mr. Condon was not convicted of intentionally violating the law; he was convicted of intentionally engaging in unseemly conduct, which is not the same thing at all.

The court metes out additional punishment to Mr. Condon by denying coverage, which (presumably) leaves the victims uncompensated, based on an interpretation of the policy that confuses the elements of the violation with the elements of proving application of the exclusion. Ironically, the appeals court lapses into the same error that it earlier in the opinion criticized the trial court of committing in reversing the trial court's ruling on whether there was a triggering occurrence, that is, of confusing the underlying elements with the elements of coverage.