RENDERED: AUGUST 20, 2026 TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0111-DG
BRIANNA ROBINSON APPELLANT
ON REVIEW FROM COURT OF APPEALS V. NO. 2023-CA-1376 CALLOWAY CIRCUIT COURT NO. 13-CI-00519
MONROE GUARANTY INSURANCE APPELLEES COMPANY; JOHN ABBINGTON THOMAS; JOHN ABBINGTON THOMAS D/B/A ROOM TO GROW PRESCHOOL; AND ROOM TO GROW PRESCHOOL, LLC
OPINION OF THE COURT BY JUSTICE GOODWINE AFFIRMING IN PART, REVERSING IN PART, AND REMANDING Appellant, Brianna Robinson (“Brianna”), appeals from the Calloway Circuit Court’s order granting Monroe Guaranty Insurance Company (“Monroe Guaranty”) declaratory and summary judgment. For the second time, this Court must consider whether the trial court performed an adequate insurance coverage evaluation.
For the reasons stated below, we affirm the Court of Appeals’ holding that the subject commercial general liability (“CGL”) base policy does not afford John Abbington Thomas (“Thomas”), doing business as Room to Grow Preschool (“Room to Grow”), coverage for Brianna’s claimed damages. However,
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we reverse the Court of Appeals’ holding that Brianna’s claimed damages are not covered under the subject professional liability endorsement. We remand this case to the trial court for a more complete coverage evaluation under the subject professional liability endorsement.
BACKGROUND
This appeal stems from a negligence action brought by Brianna against Thomas and Room to Grow (collectively, the “Insureds”) following injuries she sustained while attending Room to Grow. Monroe Guaranty intervened seeking a declaratory judgment that it is under no obligation to defend or to indemnify the Insureds.
I. Brianna’s Injuries In May of 2000, Brianna, who was two years old at the time, began attending Room to Grow, located in Murray, Kentucky. Within the first week of attending Room to Grow, Brianna sustained injuries consistent with attempted vaginal penetration with a blunt object. In Robinson’s first appeal to this Court, styled Robinson v. Thomas, Nos. 2019-SC-0451-DG & 2020-SC-0153-DG, 2022 WL 3641184 (Ky. Aug. 18, 2022) (“Robinson I”), we summarized the evidence as follows:
Over two decades ago, two-year-old Brianna was enrolled in Room to Grow. . . . Within a few days, it became clear Brianna did not want to attend the preschool. At bedtime on May 31, 2000, she told her mother, Lisa Robinson, another child at Room to Grow, Madison, had touched her vaginal area inappropriately.
Unsure how to respond, Lisa put the child to bed. The following day, Brianna's father, Dr. Thomas Robinson, picked her up from Room to Grow. Shortly thereafter, she told her father “it hurts to go potty.” After Dr.
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Robinson found her vaginal area to be “red and raw,” he and his wife agreed Brianna should be seen by their family physician, Dr. Richard Crouch.
Dr. Crouch opined a serious fall caused the injury or the irritation had been caused by someone's intentional act. Dr. Crouch recommended Brianna be taken to a gynecologist immediately. The next day, Dr. Dawn Deeter examined Brianna under anesthesia. She determined Brianna's hymen was stretched and discovered labial and vulvar lacerations indicative of attempted penetration with a blunt object. . . . Dr. Deeter indicated she had consulted with another physician who opined Brianna's injuries were not caused by a child. . . . Brianna had made various statements suggesting several possible perpetrators. On separate occasions, Brianna stated she had been touched or rubbed by five-year-old Madison, Thomas's thirteen-year-old son [Jacob], and Thomas himself. When questioned about who was present when the abuse occurred, [Robinson] looked at her father and said “somebody gonna get you.”
[Room to Grow employees] stated the abuse did not occur at Room to Grow and none recalled any injuries or complaints of pain from Brianna. Further, because of the open setup of the daycare, each indicated it would have been impossible for anyone to be alone with a child without being observed.
[Dr.] Robinson and Thomas subsequently underwent polygraph and urine testing, and each provided DNA samples. Thomas was deemed to have been truthful during the polygraph. Dr. Robinson's polygraph results were deemed to be inconclusive. Semen was discovered on several pairs of Brianna's underwear, including a pair she had not worn to Room to Grow. DNA testing excluded Thomas as the contributor, but the sample included a mixture of DNA from [Brianna] and Dr. Robinson.
Dr. Robinson was ultimately indicted for sexual abuse. He was acquitted following a jury trial. No other criminal charges have been brought against any other alleged perpetrator. Thomas never informed Monroe Guaranty
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of the alleged assault or the ensuing police investigation.
Id. at *1-*2. We recite additional facts throughout this Opinion where necessary.
II. Monroe Guaranty Insurance Policy Thomas purchased the policy of insurance at issue through Monroe Guaranty, with an effective date covering the period during which Brianna was injured. The insurance policy includes CGL and professional liability coverage. More specifically, the CGL is supplemented by a “Day Care/ Day Care Professional Liability” endorsement (“day care endorsement”) (collectively, “the policy”). Since Thomas operated Room to Grow as a sole proprietor, the policy identifies the named insured as Thomas, doing business as Room to Grow.
The CGL base policy provides coverage for two types of losses, bodily injury and property damage. Coverage is triggered if the loss “is caused by an ‘occurrence. . . .’” 1 The CGL base policy defines occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The day care endorsement amends the CGL base policy to provide additional coverage for bodily injury, property damage, and “other injur(ies) arising out of the rendering of or failure to render professional services in connection with the operation of the Insured’s business as a day care.” As such, the day care endorsement amends the CGL base policy’s
1 Coverage is triggered if the loss is caused by an "occurrence" that takes place in the
“coverage ‘territory,’” and during the “policy period.” There is no dispute that Brianna’s alleged injuries were sustained during the policy period and within the coverage territory.
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definition of occurrence to also include “any act or omission arising out of the rendering of or failure to render professional services as a day care.”
The policy includes numerous exclusions. The CGL base policy excludes from coverage any injury that was “expected or intended from the standpoint of the insured.” Coverage under the day care endorsement is excluded if the injury arises out of the following: (1) the violation of any statute, or governmental rule or regulation; (2) liability of an insured, if an individual, for personal acts or omissions of a nature other than day care; or (3) dishonest, fraudulent, criminal or malicious acts or omissions of the insured, any partner or employee.
Pursuant to the policy’s agreement, Monroe Guaranty has a duty to defend the Insureds from any suit seeking damages for a covered occurrence. Similarly, Monroe Guaranty must indemnify the Insureds for damages it is obligated to pay due to injuries arising from a covered occurrence.
III. Procedural History In December of 2013, Brianna’s mother commenced suit on her behalf against Thomas, Room to Grow, and Room to Grow, LLC. 2 The three-count complaint alleged negligence, negligent infliction of emotional distress, and negligent failure to rescue. The complaint further alleged nine specific instances of negligence. The gravamen of the complaint is that Thomas’
2 Room to Grow Preschool, LLC, has been dismissed as a party-defendant because the entity was not formed until 2007, more than five years after the subject incident.
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negligence in operating Room to Grow, including his hiring, training, and supervision of employees, resulted in her injuries.
Monroe Guaranty disclaimed coverage, provided Thomas with defense counsel under a reservation of rights, and filed an intervening complaint seeking declaratory relief from its contractual obligation to defend and indemnify Thomas under the policy. Monroe Guaranty’s declaratory action pled that Brianna’s injuries failed to qualify as a covered “occurrence” as defined by the policy. Moreover, Monroe Guaranty averred that even if Brianna’s injury qualified as an occurrence, policy exclusions precluded coverage. In 2015, after reaching the age of majority, Brianna was substituted as party plaintiff in place of her mother.
i. Robinson I In 2016, after substantial written and oral discovery, Monroe Guaranty filed a motion for declaratory and summary judgment, arguing that it did not owe the named defendants a duty to defend or indemnify. The trial court concluded that Brianna’s injuries arose from “sexual molestation,” in violation of “multiple sections of [Kentucky Revised Statutes (“KRS”)] Chapter 510.” As a result, the trial court granted Monroe Guaranty’s motion, concluding that coverage is excluded for injuries arising from a violation of any statute. On appeal, a divided Court of Appeals panel affirmed the trial court’s judgment.
This Court granted discretionary review and reversed the Court of Appeals, stating that the trial court failed to conduct an assessment regarding whether the policy afforded the Insureds an initial grant of coverage for
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Brianna’s injury. Robinson, 2022 WL 3641184, at *4. We explained that the trial court should consider policy exclusions only after establishing an initial grant of coverage. Id. at *5 (citing Am. Mining Ins. Co. v. Peters Farms, LLC, 557 S.W.3d 293, 298 (Ky. 2018)). In evaluating coverage under the CGL base policy, this Court reiterated the doctrine of fortuity, which applies when coverage is triggered by an occurrence defined as an accident. Id. (citing Martin/Elias Props., LLC v. Acuity, 544 S.W.3d 639, 643 (Ky. 2018) and Cincinnati Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69, 76 (Ky. 2010)). The doctrine of fortuity considers whether an insured intended for the event triggering coverage to occur and whether the event was a chance event beyond the insured's control. Martin/Elias Props., 544 S.W.3d at 643.
As our analysis progressed, however, we declined the opportunity to assess whether Brianna’s claims constituted an occurrence under the policy. This Court provided the following reasoning:
The question presented is whether injuries sustained as the result of a sexual assault inflicted upon a child of tender years while that child is under the care and supervision of a licensed daycare qualifies as an “occurrence” within the meaning of the CGL policy. The answer to that question necessarily depends on the facts of the case and factual determinations are to be made by trial courts as those tribunals are ideally situated to make such decisions. Unfortunately, the trial court did not do so, and the record is insufficiently developed to permit an appellate court to adequately discern the appropriate answer. . . .
Because the trial court's grant of declaratory and summary judgment was based on a flawed and incomplete factual and legal analysis, it was infirm.
Thus, we are constrained to reverse the Court of
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Appeals and remand to the trial court for further proceedings.
Id. at *5-6.
Moreover, regarding the trial court’s application of the “violation of any statute” exclusion, we underscored that the exclusion only applied in the context of coverage under the day care endorsement. This Court expressed further concern over “the expansive reading embraced by the trial court of the ‘violation of any statute’ exclusion and the apparent broadening of that interpretation by the Court of Appeals to include [any] violation . . . of the Commonwealth's thousands of statutes—regardless of the subject matter covered thereby.” Id. at *6. Upon remand, we offered the following instructions:
The trial court is encouraged to make adequate findings which clearly denote the reasoning for its ruling on coverage. The trial court should also carefully analyze and explicitly explain its ruling on the applicability of exclusionary language based on its factual findings. Including such findings will ensure the record is fully developed to enable effective and adequate appellate review, if necessary and requested.
Id. at * 6.
ii. Robinson II
On remand, the trial court once again granted Monroe Guaranty declaratory judgment and summary judgment. The trial court’s factual findings were confined to a single paragraph that focused solely on either Thomas or Brianna’s father as the individual who perpetrated the sexual assault. The trial court did not mention any facts concerning Brianna’s
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allegations that Madison or Jacob caused her injuries. The trial court also failed to identify any facts concerning Room to Grow’s business operations or the facts surrounding Room to Grow’s supervision of Brianna on the day in question. In assessing whether Brianna’s injury arose from an “occurrence,” the trial court analyzed coverage exclusively under the CGL base policy, ignoring coverage under the day care endorsement entirely. Ultimately, the trial court ruled that “the sexual assault of a child of tender years, under the care of an insured, falls squarely within intending an event to occur and that the sexual assault of a child could never be categorized as a ‘chance event’ beyond the control of the insured.”
In addition, the trial court denied the Insureds’ motion for summary judgment, concluding that genuine issues of material facts remain, including whether Brianna was injured while at Room to Grow and whether Thomas or Room to Grow acted negligently in protecting her from injury. This portion of the order on appeal is not before us.
The Court of Appeals affirmed the trial court’s judgment. The Court of Appeals rejected Brianna’s contention that the Insureds’ negligence is the event qualifying as an occurrence. The Court of Appeals opined that Brianna’s injury, which was caused by vaginal penetration with an object, is the event to be analyzed when assessing the existence of an occurrence under the CGL base policy.
In evaluating the harm-producing act, the Court of Appeals concluded that the unknown perpetrator’s actions were intentional and within the
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Insureds’ control. The Court of Appeals reasoned that whether an action is intentional “as opposed to accidental, is supposed to be viewed from the standpoint of a layperson. And any reasonable layperson would conclude that penetration of a two-year-old’s vagina with a blunt instrument was not an accident, by-chance event, or fortuity.” The Court of Appeals went further by assuming that Brianna’s injuries were caused by a criminal sexual assault, and therefore intent may be inferred pursuant to Thompson v. West American Insurance Co., 839 S.W.2d 579, 581 (Ky. App. 1992). Specifically, the Court of Appeals held that “[a] plain reading of case law shows that [Brianna’s] status as the victim of a sexual crime sufficiently demonstrates an intent to harm and injure her.” As to the element of control, the Court of Appeals concluded that Thomas and Room to Grow maintained full control over the conditions that led to Brianna’s sexual assault, including the layout of the premises, the placement of staff, and the staff’s supervision of children.
Turning to potential coverage under the day care endorsement, the Court of Appeals, citing Employers Insurance of Wausau v. Martinez, 54 S.W.3d 142, 144 (Ky. 2001), first determined that coverage is not appropriate under the day care endorsement because Brianna’s injuries resulted from intentional acts that did not “arise out of” the Insureds’ failure to render professional services. The Court of Appeals reached this conclusion by rendering its own factual findings. The Court of Appeals further found that the “undisputed facts show that [Room to Grow] maintained an open layout setup, whereby employees observed the children, and at no time was [Brianna] left alone with another
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child, Thomas, or a [Room to Grow] employee.” In its concluding paragraph, the Court of Appeals stated that the day care endorsement did not provide “liability insurance for criminal, intentional actions perpetrated upon [Room to Grow’s] premises.”
This Court granted Brianna’s petition for discretionary review. Brianna alleges the trial court and the Court of Appeals made several errors in evaluating coverage under the policy. We address each allegation of error in turn below.
STANDARD OF REVIEW
Pursuant to Kentucky Rules of Civil Procedure (“CR”) 56.01, a party seeking declaratory judgment may move at any time for summary judgment in his favor. In Robinson I, this Court detailed the following standard of review for evaluating a judgment obtained through CR 56.01:
When “a summary judgment has been granted in a declaratory judgment action and no bench trial held, the standard of review for summary judgments is utilized.” Ladd v. Ladd, 323 S.W.3d 772, 776 (Ky. App.
2010) (citation omitted). “The standard of review on appeal of summary judgment is whether the trial court correctly found there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Carter v. Smith, 366 S.W.3d 414, 419 (Ky. 2012) (citations omitted). “If a question of material fact exists when viewing the evidence through a lens most favorable to . . . the party opposing summary judgment, summary judgment is inappropriate.” Allstate Ins. Co. v. Smith, 487 S.W.3d 857, 860 (Ky. 2016). Summary judgment is only proper when “it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citation omitted). The word
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“impossible” in Steelvest was “used in a practical sense, not in an absolute sense.” Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992).
2022 WL 3641184, at *4.
We must also apply de novo review to the lower court’s interpretation of an insurance contract. Bituminous Cas. Corp. v. Kenway Contracting, Inc., 240 S.W.3d 633, 638 (Ky. 2007). Ambiguous terms are to be construed against the drafter and in favor of the insured. Id. (citing James Graham Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 279 (Ky. 1991)). “[W]here not ambiguous, the ordinary meaning of the words chosen by the insurer is to be followed.” Id. (citing Washington Nat'l Ins. Co. v. Burke, 258 S.W.2d 709 (Ky. 1953)).
ANALYSIS
At issue before this Court is whether the policy obligates Monroe Guaranty to defend the Insureds in this action, and, if so, indemnify the Insureds for damages that it may be legally obligated to pay. Here, the trial court’s analysis ended with the threshold determination that the policy did not provide the Insureds with initial coverage for the loss. However, the trial court’s ruling considered coverage only under the CGL base policy, not the day care endorsement. On appeal, we must determine if the Court of Appeals erred in affirming the trial court’s incomplete analysis and resulting conclusion.
I. Coverage under the CGL base policy The CGL base policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful
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conditions.” The CGL base policy, like most form CGL policies, fails to define the term accident. Where “accident” is not defined in the policy, Kentucky courts define the term by its ordinary meaning. Am. Mining Ins. Co., 557 S.W.3d at 296. “Inherent in the plain meaning of ‘accident’ is the doctrine of fortuity,” which requires courts to analyze the insured's intent and control. Cincinnati Ins. Co., 306 S.W.3d at 74. Specifically, we consider “1) whether the insured intended the event to occur; and 2) whether the event was a ‘chance event beyond the control of the insured.’” Martin/Elias Props., 544 S.W.3d at 643 (quoting Cincinnati Ins. Co., 306 S.W.3d at 76). Thus, if the Insureds did not intend the event to occur, or if it was beyond their control, the event was an accident, and the trial court erred in refusing to extend an initial grant of coverage under the CGL base policy.
Brianna’s first argument is that the event triggering coverage under the CGL base policy was the Insureds’ negligence, rather than the act of vaginal penetration itself. Existing Kentucky law does not address this specific question, and the Court of Appeals’ cited support is unhelpful. We tend to agree with Brianna that under the plain and ordinary language of the CGL base policy, which states that coverage is triggered if Brianna’s bodily injuries were “caused by an ‘occurrence,’” this logically triggers coverage for injuries sustained from more than one event. With that being said, we will not analyze this point further because even if we accept Brianna’s proposition as true, the Insureds clearly had control over whether or not they acted negligently in
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failing to protect Brianna from harm, thereby precluding the event from qualifying as an accident.
Moving forward, we address defects in the Court of Appeals’ fortuity analysis. Although we affirm the Court of Appeals on this issue, it is important that we clarify the law.
Regarding intent, we highlight the trial court’s conclusion that the “sexual assault upon a child of tender years, under the care of an insured, falls squarely within intending an event to occur . . . .” The Court of Appeals agreed with the trial court’s conclusion that the Insureds failed to meet the first prong of the fortuity analysis. The Court of Appeals reached this holding by utilizing the inferred-intent rule. See Thompson, 839 S.W.2d at 581 (holding that “sexual molestation is so inherently injurious, or substantially certain to result in some injury, that the intent to injure, or the expectation that injury will result, can be inferred as a matter of law”). The Court of Appeals affirmed the trial court’s ruling because “[a] plain reading of case law shows that [Brianna’s] status as the victim of a sexual crime sufficiently demonstrates an intent to harm and injure her.”
We find obvious missteps in the Court of Appeals’ analysis. First, the Court of Appeals classified the injury as a “sexual crime.” The classification of the event is important because, as apparent from the Court of Appeals’ opinion, if the event in question is classified as criminal sexual assault, then intent may be inferred under Kentucky law. See Thompson, 839 S.W.2d at 581. KRS 456.010(6) defines sexual assault as “conduct prohibited as any degree of rape,
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sodomy, or sexual abuse under KRS Chapter 510 or incest under KRS 530.020[.]” Chapter 510 provides for three main sexual offenses with varying degrees, including sexual abuse, rape, and sodomy. All offenses require some form of “sexual contact” or “sexual intercourse” that, in turn, require a sexual purpose or sexual gratification. While the perpetrator of Brianna’s vaginal penetration is unknown, the facts, as viewed in a light most favorable to Brianna, show that her injuries occurred at the hands of another child. If we assume that another child perpetrated the harm, we cannot classify the event as a sexual criminal offense. To do so erroneously assumes a five-year-old child maintained and furthered a sexual purpose for her alleged conduct. Moreover, while this Court previously used the term “sexual assault” when referring to the alleged penetration of Brianna’s vagina, in this case it is more appropriately referred to as an act of vaginal penetration upon a child by a child, not criminal sexual assault.
Second, despite our clear direction in Martin/Elias Properties, the Court of Appeals explained that “what acts are intentional, as opposed to accidental, is supposed to be viewed from the standpoint of a layperson.” This is not the legal standard. The first prong of the fortuity analysis contemplates intent from the standpoint of the insured, not a layperson. In the case sub judice, the policy defines an “insured” as one who is designated in the policy declarations. Here, “John A. Thomas DBA Room to Grow Preschool” is identified as the named insured on the declarations page. In addition, the policy defines an Insured as an “employee” of Room to Grow if performing acts within the scope
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of their employment or while performing duties related to the conduct of the business. Thus, the focus of the first prong of the fortuity analysis questions whether the Insureds—Thomas or Room to Grow employees—intended for Brianna to be harmed through forceful vaginal penetration with an object.
Brianna has alleged two factual scenarios, which if found true by the trier of fact, would forestall a finding that the Insureds intended for the harm- producing conduct to take place. These scenarios allege that Madison or Jacob were the actors responsible for Brianna’s injuries. These allegations are supported by testimony from Brianna’s parents, both of whom testified in their depositions that Brianna claimed, on more than one occasion, that Madison or Jacob perpetrated the harm. Brianna’s allegations regarding Madison and Jacob are further documented in medical records, police records, and intake records. Unfortunately, the trial court failed to mention or consider these facts. If the trial court had, perhaps it would have concluded that the Insureds did not intend for another child to use a blunt object to penetrate Brianna’s vagina.
On the element of control, the Court of Appeals agreed with the trial court’s conclusion “that the sexual assault of a child could never be categorized as a ‘chance event’ beyond the control of the insureds.” We cannot approve this blanket proposition. Nonetheless, we agree with the Court of Appeals’ conclusion that the Insureds maintained control over the event as “the insured(s) w[ere] in charge of planning and executing the operation and had full control over the work. . . . [The Insureds] were responsible for business of the company (school for children), the planning of the job to be done (caring for
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them), the layout of the area, the supervision of its workers, staffing, the placement of the children, and their safety and well-being.”
Brianna fails to identify any genuine issue of material fact on the question of control. Therefore, we affirm the Court of Appeals finding that the Insureds had control over the event in question, thereby failing to meet the second prong of the fortuity analysis. In sum, coverage under the CGL base policy was not triggered as the event that caused Brianna’s injuries, whether it was the act of vaginal penetration or the Insureds’ negligence, did not qualify as an occurrence. We therefore affirm the Court of Appeals’ opinion on this issue, although on different grounds.
II. Coverage under the day care endorsement The second source of potential coverage is through the day care endorsement that adds coverage for “occurrences” that result in bodily injury or “other ‘injury’ arising out of the rendering of or failure to render professional services in connection with the operation of the Insured’s business as a day care.” We note that Monroe Guaranty has consistently acknowledged that the day care endorsement provides professional liability coverage which is distinct from general liability coverage as found in the CGL base policy. Surprisingly, however, the trial court’s declaratory and summary judgment order is completely devoid of any analysis regarding coverage under the day care endorsement. Therefore, our review is confined to the Court of Appeals’ holding that the day care endorsement does not provide coverage for Brianna’s damages.
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Similar to the Court of Appeals’ analysis on coverage under the CGL base policy, we find fundamental errors in its assessment. The crux of the Court of Appeals’ holding is that “there can be no coverage under a professional errors or mistakes policy of insurance for claims arising from deliberate harmful acts.” This is simply not reflected in the policy language and is certainly not supported by the law. We find it apparent that the Court of Appeals confused an initial grant of coverage under the policy, which is not dependent on intentionality, with the application of potential exclusions. The Court of Appeals’ misplaced reliance on Martinez, 54 S.W.3d at 144, reveals its misunderstanding. In Martinez, this Court evaluated coverage under a professional liability insurance policy for cemetery mismanagement. Id. This Court evaluated whether a policy exclusion prohibited coverage for willful violations of a penal statute. Id. The question before this Court was whether the exclusion required a criminal conviction. Id. We found that the exclusion’s unambiguous language did not require a conviction for the exclusion to apply. Id. at 144-45. Even a strained interpretation of Martinez does not lead to a conclusion that a claimant cannot obtain an initial grant of coverage from a professional liability policy merely because the harmful act was deliberate.
In addition, the Court of Appeals erroneously made its own factual findings to determine that Brianna’s damages did not arise out of the Insureds’ rendering of or failure to render professional services in connection with the operation of Room to Grow. The Court of Appeals explained that the phrase “‘arising out of’ merely connotes a causal connection with the acts at issue.”
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(citing Hugenberg v. W. Am. Ins. Co./Ohio Cas. Grp., 249 S.W.3d 174, 186 (Ky. App. 2006)). The Court of Appeals found that there were no genuine issues of material fact because Room to Grow maintains an open layout setup and employees did not witness a sexual assault. However, these facts do not foreclose the possibility that the Insureds’ negligence led to the harm or permitted the harm to occur, considering Brianna made statements that her injuries were caused by other children, and both of her parents denied the existence of her injuries prior to the day in question, during which she was in the care of Room to Grow. See W. Am. Ins. Co. v. Dickerson, 865 S.W.2d 320, 323 (Ky. 1993) (“There is only one witness's (being appellee) undisputed testimony, but there are still different inferences to be drawn therefrom (evidenced by a dissent that is sure to follow.”).
While we will not determine whether a genuine issue of material fact exists, a cursory review of the record reveals information and evidence that neither the trial court nor the Court of Appeals addressed, which could call into question whether the facts were “undisputed” and, if disputed, whether they were material. 3 We, therefore, hold that the Court of Appeals impermissibly weighed the evidence to conclude that the day care “[e]ndorsement does not operate to turn the undisputed fact of an intentional assault into a negligence claim.” Reversal is warranted.
3 For example, evidence of access to an upstairs area where investigators
discovered a female child’s underwear and a statement taken from another Room to Grow parent alleging abuse at the day care.
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To conclude, the trial court’s failure to examine coverage under the day care endorsement renders its analysis incomplete, as the day care endorsement is not only a part of the policy, but also ensures risks not covered in the CGL base policy. See Kemper Nat'l Ins. Cos. v. Heaven Hill Distilleries, Inc., 82 S.W.3d 869 (Ky. 2002). For the same reasons we articulated in Robinson I, we must reverse the Court of Appeals and remand to the trial court for a complete factual and legal analysis.
As this is the second time we are remanding this matter to the trial court, we again instruct the trial court to complete a full coverage analysis, which now encompasses only coverage under the day care endorsement. To bring finality to this matter, we make it clear that coverage is triggered under the day care endorsement if (1) Brianna’s damages (2) arose out of (2) the rendering of or failure to render professional services in connection with the operation of Room to Grow. Should the trial court conclude that the policy provides an initial grant of coverage, then it must consider coverage exclusions, and, if applicable, any exceptions to those exclusions.
CONCLUSION
For the foregoing reasons, the decision of the Court of Appeals is affirmed in part, reversed in part, and the matter is remanded to the Calloway Circuit
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Court for further proceedings consistent with this Opinion.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Kevin C. Burke Jamie K. Neal Burke Neal PLLC
John B. Bruce Bruce Law Group, LLC
Nathan Williams, Bahe, Cook, Cantley & Nefzger PLLC
COUNSEL FOR APPELLEE, MONROE GUARANTY INSURANCE COMPANY:
David K. Barnes Matthew R. Londergan Robert Quincy Ward Barnes Maloney PLLC
COUNSEL FOR APPELLEE, ROOM TO GROW PRESCHOOL, LLC:
Richard L. Walter Boehl Stopher & Graves, LLP
Robert E. Maclin, III Whiteford Taylor & Preston, LLP
COUNSEL FOR APPELLEES, JOHN ABBINGTON THOMAS JOHN ABBINGTON THOMAS D/B/A ROOM TO GROW PRESCHOOL:
Pro Se