CONTINENTAL INSURANCE CO., Plaintiff-Appellee, v. Karen ADAMS, Andrew Slentz, Estate of John S. Keck, Defendants-Appellants, 438 F.3d 538

SILER, J., delivered the opinion of the court, in which CARR, D.J., joined. CLAY, J. (pp. 541 - 44), delivered a separate concurring opinion. SILER, Circuit Judge. Defendants Karen Adams, Andrew Slentz and the Estate of John S. Keck appeal the grant of

summary judgment to Plaintiff Continental Insurance Co., declaring that a homeowners insurance policy held by decedent John Keck did not cover intentional injuries to Adams and Slentz. For the reasons set forth below, we AFFIRM. I. Background In 1999, Keck went to the home of his ex-girlfriend, Adams, and demanded that she choose between him and her new boyfriend, Slentz. Adams chose Slentz. Keck left and returned thirty minutes later with a rifle. He shot at Adams several times from close range, wounding her. Keck then chased Slentz who was also at the home, and eventually shot him. Keck then killed himself.

Adams and Slentz sued Keck’s estate along with Continental Insurance Co., with whom Keck had a homeowners insurance policy. Keck’s estate settled, at which point Continental removed the action to federal district court. Continental filed for a declaratory judgement, consolidated the two actions, and moved for

summary judgment. At issue was whether Keck’s actions were intentional, given the following provision in Continental’s insurance agreement with Keck: LOSSES WE DO NOT COVER 1. Personal Liability and Medical Expense coverages do not apply to bodily injury or property damage: h. Intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of one or more covered persons. This exclusion applies even if:

(1) Such covered person lacks the mental capacity to govern his or her conduct^] This exclusion applies regardless of whether or not such covered person is actually charged with or convicted of a crime. The district court denied

summary judgment, permitting discovery as to Keck’s “intent and his understanding of the physical nature of the consequences of his actions on November 1, 1999.” Dr. Patrick Hardesty, a psychologist, testified as an expert on behalf of Adams and Slentz that Keck could not have understood the physical nature of the consequences of his actions, while Continental’s expert reached the opposite conclusion. At the close of discovery, Continental renewed its motion for

summary judgment, which the district court granted, concluding that the inferred intent rule applied and that Keck’s mental capacity at the time of the shooting was irrelevant given the contract provision. II. Discussion This court reviews the district court’s grant of

summary judgment de novo. Lautermilch v. Findlay City Schs., 314 F.3d 271, 274 (6th Cir.2003). Because this case is in federal court under the diversity statute, 28 U.S.C. § 1332, Kentucky substantive law governs. See Gahafer v. Ford Motor Co., 328 F.3d 859, 861 (6th Cir.2003). Adams and Slentz contend that Keck’s mental capacity bore upon his ability to form the requisite intent and, therefore, should be decided by a jury. Normally, intent is a question for the jury. See James Graham Brown Found., Inc. v. St. Paul Fire and Marine Ins. Co., 814 S.W.2d 273, 276 (Ky.1991). However, this is not a per se rule. A court may infer intent on

summary judgment “where the insured’s conduct is both intentional and of such a nature and character that harm inheres in it, that conduct affords a sufficiently clear demonstration of intent to harm subsuming any need for a separate inquiry into capacity.” Goldsmith v. Physicians Ins. Co. of Ohio, 890 S.W.2d 644, 646 (Ky.Ct.App.1994) (internal citation omitted). Thus,

summary judgment can be appropriate since “such inferences must necessarily be made by the courts because of the nature and circumstance of the fact situation.” Goldsmith, 890 S.W.2d at 645 (emphasis added) (citing Brown Found., 814 S.W.2d at 277). Here, the evidence as to Keck’s actions was uncontroverted. There was no question of material fact as to whether Keck acted intentionally when he retrieved the rifle, returned to Adams’s home, and shot both Adams and Slentz at close range. Thus,

summary judgment was proper. A claim that the shooting was somehow unintentional “would be unsound.” See James v. Ky. Farm Bureau Mut. Ins. Co., 2003 Ky.App. LEXIS 312, at *13-14 (Ky.Ct. App. Dec. 12, 2003). Adams and Slentz contend that Goldsmith is limited to evidence of the extraordinary circumstance of child molestation, and the competing expert testimony raised a material issue of fact as to Keck’s ability to form the requisite intent. Both of these are incorrect. First, Kentucky courts have not so restricted Goldsmith’s scope. See, e.g., James, 2003 Ky.App.

LEXIS 312, at *13 (shooting into crowd permitted inference of intent); Walker v. Econ. Pre ferred Ins. Co., 909 S.W.2d 343, 345 (Ky.Ct.App.1995) (“[T]he ‘inherently injurious’ act of punching someone in the face supports the trial judge’s inference as a matter of law that [the insured] intended to injure [the plaintiff].”); Stone v. Ky. Farm Bureau Mut. Ins. Co., 34 S.W.3d 809, 812-13 (Ky.Ct.App.2001) (discussing applicability of inferred intent rule to man who pointed gun at and shot son). Second, the expert testimony as to Keck’s mental capacity was irrelevant.

The insurance policy’s plain language unambiguously precludes coverage for losses incurred through an insured’s intentional act, even if the insured “lacks the mental capacity to govern his ... own conduct.” Clauses limiting liability to unintentional acts irrespective of mental capacity have long been enforceable in Kentucky. See, e.g., Colonial Life & Accident Ins. Co. v. Wagner, 380 S.W.2d 224, 226-27 (Ky.1964) (it was irrelevant whether the assailant was insane because “under the terms of the policy the act was intentional and therefore specifically excluded from the coverage.”).

Furthermore, “[i]t is settled Kentucky law ... that the court must give all terms their plain meaning and not rewrite an insurance contract to enlarge that risk.” United States Fid. & Guar. Co. v. Star Fire Coals, Inc., 856 F.2d 31, 33 (6th Cir.1988) (citations omitted). While this exclusionary clause apparently was not in the insurance policies in prior cases, it is plain that the intent behind its inclusion was to preclude any insanity defense that the insured lacked the mental capacity to commit the act involved. AFFIRMED. .

Adams and Slentz contend that Stone did not decide the case upon the inferred intent rule. See 34 S.W.3d at 813. However, the court of appeals, in Stone, remarked that "the inferred intent exception referred to in the Brown Foundation case and utilized in Thompson [v. West Am. Ins. Co., 839 S.W.2d 579 (Ky.Ct.App.1992) ] has been applied in a context other than sexual molestation.” 34 S.W.3d at 812.