Medical Protective Company v. Gregory Duma

478 F. App'x 977
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 1, 2012
Docket10-3866, 10-3867
StatusUnpublished
Cited by1 cases

This text of 478 F. App'x 977 (Medical Protective Company v. Gregory Duma) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Medical Protective Company v. Gregory Duma, 478 F. App'x 977 (6th Cir. 2012).

Opinions

OPINION

JANE B. STRANCH, Circuit Judge.

Medical Protective Company, Dr. Gregory Duma’s professional liability insurer, was contractually obligated to indemnify Duma for his malpractice liability in delivering Michelle Heinrich’s child while intoxicated unless, under a policy exclusion, the damages were “in consequence of the performance of a criminal act.” The insurer sought to disclaim coverage and the district court granted it summary judgment on the ground that Duma’s actions constituted the crime of wanton endangerment under Kentucky law. Because a finding of wanton endangerment was properly based upon Duma’s admissions, we must affirm the judgment of the district court.

I. FACTS

In July 2005, Gregory Duma, a physician, applied for and was issued professional liability insurance by Medical Protective Company (“MPC”). The policy included an exclusion stating that it did not cover “payment of damages (BUT WILL DEFEND) in any claim for damages if said damages are in consequence of the performance of a criminal act or willful tort or sexual act.”

Duma was employed by St. Elizabeth Medical Center in Edgewood, Kentucky. On the morning of October 23, 2005, he examined Michelle Heinrich and induced labor. He then left the hospital and proceeded to drink a large quantity of vodka in a nearby park. He returned to the hospital that afternoon to deliver Heinrich’s baby, Cameron Heinrich. Both child and mother suffered labor-related injuries. During the delivery, Duma’s behavior was ordinary enough that no one stopped him from delivering Cameron. After the delivery, however, it was noticed that Duma smelled of alcohol, and so a blood alcohol test was administered. The test recorded a blood alcohol content of .27, well above the Kentucky legal limit of .08.

The Heinrich family sued Duma and the hospital in state court and MPC defended Duma. The jury found both Duma and the hospital at fault, and assigned punitive damages against Duma. The jury instructions provided that punitive damages were allowed only if the jury found that Duma [979]*979had acted in reckless disregard for the lives or safety of the Heinrichs.

In October 2008, MPC filed a complaint in district court asking the court to rescind and hold void Duma’s professional liability policy because he did not disclose his alcoholism, or, in the alternative, to find that MPC had no duty to indemnify Duma in the Heinrich litigation because the policy excluded damages resulting from a criminal act. MPC argued that Duma’s actions constituted wanton endangerment, a misdemeanor under Kentucky law. See Ky. Rev.Stat. § 508.070(1); Ky.Rev.Stat. § 501.020(3). All parties agreed that Kentucky law applied to the case. Michelle Heinrich, her husband Denny Heinrich, and Cameron Heinrich intervened in the case the following year.

Both sides moved for summary judgment and MPC’s motion was granted. The district court held that Duma’s admission “that he drank almost a fifth of vodka knowing full well that he would have to deliver a baby later that day” meant that his actions met the definition of wanton endangerment in the second degree. The district court also found that, on the facts presented, “no reasonable juror could find” that the damages the Heinrichs suffered were other than a consequence of Duma’s behavior, based in part on the fact that no evidence was presented to show that the injuries sustained by the Heinrichs “would have occurred regardless of Duma’s intoxication.”

Duma and the Heinrichs timely appealed both the grant of summary judgment for MPC and the denial of Duma’s cross motion.

II. ANALYSIS

Whether summary judgment was properly based on the policy exclusion depends on the meaning of the language of the contract — a legal issue. The first question is whether the words of the exclusion require some sort of criminal adjudication.

Kentucky courts demand that the applicability of an exclusion be unambiguous before it is honored. This is based on the twin cardinal principles that (1) insurance contracts must be construed “so that all doubts pertaining to coverage are resolved in the insured’s favor,” and (2) exclusions must be read to make insurance effective whenever reasonably possible. State Farm Mut. Auto. Ins. Co. v. Wilson, 26 Fed.Appx. 490, 494 (6th Cir.2002) (citing Ky. Farm Bureau Mut. Ins. Co. v. McKinney, 831 S.W.2d 164, 166 (Ky.1992)). But “where the language of an insurance policy is clear and unambiguous, it cannot be construed to mean other wise than what it says.” Simpsonville Wrecker Serv., Inc. v. Empire Fire & Marine Ins. Co., 793 S.W.2d 825, 829 (Ky.App.1989) (internal citation omitted). “[Cjourts should not rewrite an insurance contract to enlarge the risk to the insurer.” St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226-27 (Ky.1994) (citing U.S. Fidelity & Guar. Co. v. Star Fire Coals, Inc., 856 F.2d 31 (6th Cir.1988)).

In Healthwise of Kentucky, Ltd. v. Anglin, 956 S.W.2d 213, 215-16 (Ky.1997), the Kentucky Supreme Court refused to hold that an exclusion of coverage for injuries “sustained as a result of being under the influence of alcohol (legal intoxication as defined by Kentucky law)” applied to a man with a blood alcohol content (BAC) of .21 who was driving “at about 70 miles per hour in a 35 mile per hour zone and driving on the wrong side of the road.” The court determined that the language of the exclusion required a legal adjudication of the crime before the exclusion could be applied. Id. at 217. The court held:

[980]*980Kentucky law does not give a definition for legal intoxication which is exclusive to alcohol. That is, there is no statute that states, “Alcohol Intoxication means_” Instead, contained in Kentucky Revised Statutes are a number of statutes which make the state of alcohol intoxication, under varying circumstances, a punishable offense. It is from these statutes that the Court of Appeals adopted a definition for legal alcohol intoxication. The statute chosen by the Court of Appeals is particularly appropriate because it is limited solely to alcohol intoxication. Under the defining statute chosen by the Court of Appeals, the status of legal alcohol intoxication is determined through adjudication in a criminal proceeding. Thus, we agree with the Court of Appeals that for the exclusion to apply to Anglin “he must not only have acted in a manner described under KRS 222.202(1), but he must have been adjudicated guilty of such conduct.”

956 S.W.2d at 217-18 (emphasis added).

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