RENDERED: FEBRUARY 10, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0338-MR

BERNARD TEW, PH.D.; ANDREA 

TEW; STEPHANIE TEW; AND 

VINCENT TEW APPELLANTS 

v. 

APPEAL FROM WOODFORD CIRCUIT COURT

HONORABLE BRIAN PRIVETT, JUDGE

ACTION NO. 20-CI-00066

KENTUCKY FARM BUREAU 

MUTUAL INSURANCE COMPANY;

AND ACUITY, A MUTUAL 

INSURANCE COMPANY APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CETRULO, JONES, AND MCNEILL, JUDGES.

CETRULO, JUDGE: This is an appeal from summary judgments granted in favor 

of two insurers. The trial court ruled that there was no duty to defend nor any 

obligation to indemnify the appellants under any of the applicable insurance 

policies. Because the facts are somewhat convoluted, we begin there. 
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Dr. Bernard Tew and his wife, Andrea, (“the Tews”) ran a small 

investment management limited liability company, Bluegrass Investment 

Management Company (“Bluegrass”), which they started to provide financial 

services for several retirement funds for businesses owned by George Hofmeister. 

Through a rather complex investment strategy called dividend arbitrage, the Tews1

associated with a London-based investment banker, ED&F Man Capital Markets 

Limited (“ED&F”), to purchase shares of stock in European businesses just prior to 

the stock’s dividend payment. After the dividend was paid to retirement fund 

accounts, the shares were promptly sold.

Pursuant to Danish law, the Customs and Tax Administration of 

Denmark (“SKAT”) withholds a 27% tax on dividend payments made to 

retirement fund accounts. Tax treaties between the United States and Denmark 

allowed those U.S. funds to obtain a tax refund of any dividend tax withheld. To 

obtain those tax refunds, documentation had to be provided to SKAT. The Tews, 

as U.S.-based fiduciaries of the retirement funds, provided Internal Revenue 

Service (“IRS”) forms and power of attorney forms to the payment agent in 

Europe. SKAT then approved the refund request and paid the dividend tax refunds 

into the retirement accounts. 

1 Andrea Tew, Vincent Tew, and Stephanie Tew Campbell, children of the Tews, moved to 

intervene in this suit as fiduciaries of three separate retirement accounts. While there are some 

separate issues as to their potential coverage, we will simply refer to all appellants as the Tews.
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However, in 2015, SKAT discovered that the tax refund requests it

processed and paid to numerous U.S. retirement funds exceeded the amount of 

taxes that had actually been withheld. SKAT contends that it transferred billions 

of Danish Kroner (Danish currency) to accounts that were not entitled to receive 

them. The Tews claim that the retirement fund accounts were being manipulated 

fraudulently by insiders at ED&F. 

Regardless of whether the Tews had knowledge of those actions, they 

were sued along with others in 15 complaints filed by the Kingdom of Denmark. 

Those actions were heard in the United States District Court for the Eastern 

District of Kentucky. In short, the suits alleged that the Tews had negligently 

misrepresented facts and provided inaccurate information and misrepresentations

to SKAT to process a tax refund claim, which SKAT relied upon, and made 

corresponding payments into the Tews’ retirement accounts/entities.2

The Tews initially sought bankruptcy protection as a result of the

SKAT litigation and reached a confidential agreement with SKAT as part of the 

bankruptcy proceedings. Thereafter, the Tews filed this action in Woodford 

Circuit Court, seeking a declaratory judgment that Acuity, a Mutual Insurance 

Company (“ACUITY”) and Kentucky Farm Bureau (“KFB”) had a duty to defend 

2 Although there were also allegations of fraud, here, the parties agree that there would be no 

coverage under any policy for those claims.
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the Tews against SKAT’s allegations and that one or both of them were liable for 

the damages that were being sought against the Tews. This leads us to a discussion 

of the policies alleged to be in effect at the time of those allegations.

I. The Acuity Policy

ACUITY issued a commercial general liability policy to Bluegrass,

which was in effect from January of 2013 until January of 2014 (“Acuity Policy”). 

The parties agree that Bernard and Andrea Tew were the named members and only 

employees of the named insured, Bluegrass. That policy provided that 

1. If you are designated in the Declarations as:

 . . . .

c. A limited liability company, you are an 

insured. Your members are also insureds, 

but only with respect to the conduct of your 

business. Your managers are insureds, but 

only with respect to their duties as your 

managers.

. . . .

The parties agree that the policy and/or its endorsements clearly

define the scope of “property damage” and “occurrence,” as follows:

1. Insuring Agreement

a. We will pay those sums that the insured 

becomes legally obligated to pay as damages 

because of . . . property damage to which this 

insurance applies. We will have the right and 

duty to defend the insured against any suit 
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seeking those damages. However, we will 

have no duty to defend the insured against any 

suit seeking damages for . . . property damage 

to which this insurance does not apply. . . .

b. This insurance applies to bodily injury and 

property damage only if:

(1) The bodily injury or property damage is caused by an 

occurrence that takes place in the coverage territory;

(2) The bodily injury or property damage occurs during the 

policy period, . . . .

(Emphasis added.)

The Acuity Policy defined the following terms:

17. “Property Damage” means:

. . .

b. Loss of use of tangible property that is 

not physically injured. All such loss of use 

shall be deemed to occur at the time of the 

“occurrence” that caused it. . . .

18. “Suit” means a civil proceeding in which damage 

because of . . . [property damage] to which this insurance 

applied is alleged. . . .

(Emphasis added.)

Further, it defined “occurrence” in the base policy using an 

Amendatory Endorsement Form No IL – 7092(2-11), which provided, in pertinent 

part:
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Occurrence means an accident, including continuous or 

repeated exposure to the same general harmful 

conditions. Occurrence includes:

. . . 

B. Property damage to property other than your 

work that arises out of your work. . . . ROA 

2240-2265. 

The Tews contend that ACUITY had a duty to defend them in relation 

to the complaints filed by SKAT in the United States District Court for the Eastern 

District of Kentucky. They assert that the foregoing definition of “occurrence” 

provides coverage for accidental conduct and that there is at least one allegation in 

the SKAT complaints that the Tews did something accidentally, resulting in 

property damage. ACUITY contends the conduct of the Tews was not covered 

under the terms of the policy and does not constitute an “occurrence” as defined in 

the Acuity Policy. ACUITY further contends that the loss of use of money 

asserted in the SKAT complaints does not constitute “property damage” caused by 

an occurrence.

II. The Kentucky Farm Bureau Policies

The trial court initially found that the only possible effective policy 

that KFB had issued to the Tews at the time of the loss was a farm policy on 

property owned in Lyon County, Kentucky. The order specifically stated that at 

the time of the losses claimed by SKAT, the Tews resided in Woodford County 
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and had separate liability coverage on that residence with a different carrier. The 

trial court held there was no coverage owed nor any duty to defend under that farm 

policy.

The Tews’ briefs, however, make no reference to the farm policy and

instead address only purported claims under a KFB homeowner’s policy, first 

issued to the Tews in October 2018 to cover their Woodford County home (“KFB 

Homeowner’s Policy”). We are “without authority to review issues not raised in or 

decided by the trial court.” Util. Mgmt. Grp., LLC v. Pike Cnty. Fiscal Ct., 531 

S.W.3d 3, 13 n.8 (Ky. 2017) (citing Ten Broeck DuPont, Inc. v. Brooks, 283

S.W.3d 705, 734 (Ky. 2009)). While the trial court did find that there was no duty 

to defend nor any coverage owed under any policy issued by KFB, we will review 

only the applicability of the KFB Homeowner’s Policy as that is the only argument 

the Tews raise here. 

The KFB Homeowner’s Policy defines the following terms:

An “occurrence” means an accident, including

continuous or repeated exposure to substantially the same 

general harmful conditions, which results, during the 

policy period, in: 

. . . 

6. “Property damage” means physical injury to, 

destruction of, or loss of use of tangible property.

(Emphasis added.)
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Section II of the KFB Homeowner’s Policy provided liability 

coverage, and Coverage E provided personal liability coverage. The insuring 

agreement provides:

SECTION 11 – LIABILITY COVERAGES

COVERAGE E – Personal Liability

If a claim is made or a suit is brought against an 

“insured” for damages because of “bodily injury” or 

“property damage” caused by an “occurrence” to which 

this coverage applies, we will:

1. Pay up to our limits of liability for damages for which 

the “insured” is legally liable. Damages include prejudgment interest awarded against the “insured”; and

2. Provide a defense at our expense by counsel of our 

choice, even if the suit is groundless, false or 

fraudulent. We may investigate and settle any claim 

or suit that we decide is appropriate. Our duty to 

settle or defend ends when the amount we pay for 

damages resulting from the “occurrences” equals our 

limit of liability.

The Tews maintain that they were insureds, as named individuals 

residing in the residence, along with their son, who still lives in the residence. 

They also assert that one of their daughters resided there during the period that the 

transactions at issue were ongoing and could also qualify under the definitions.

They asserted that the KFB Homeowner’s Policy language does not limit coverage 

in terms of the date the suit was filed or when the accidental occurrence happened. 

It was further their position that the KFB Homeowner’s Policy definition of 
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“occurrence” does not require the “accident” to occur during the policy period, but 

requires only the “property damage” caused by the accident to result during the 

policy period.

As they claimed in regard to ACUITY, the Tews argue that the 

allegations of five of the SKAT complaints, i.e., of negligent misrepresentation 

resulting in a loss of use of tangible property, are sufficient to require KFB to 

defend them. KFB maintains that the KFB Homeowner’s Policy defines an 

“occurrence” as an accident that results during the policy period in property 

damage that must occur during the policy period. KFB further maintains that the 

transactions at issue took place years before the policy was effective. Finally, KFB 

asserts that none of the allegations involve an “occurrence” or “accident” as those 

terms are defined. The parties agree that the “occurrence,” “accident,” or 

“property damage,” if applicable at all, was the loss of Danish Kroner alleged by 

SKAT, which took place in 2013 to 2014 and was discovered by the Danish tax 

authority in 2015. KFB also asserts that even if there were any coverage afforded 

under any of the policies, it is specifically excluded by multiple exclusions within 

each of the policies. 

STANDARD OF REVIEW

When a trial court grants summary judgment in a declaratory 

judgment action with no bench trial, as it did here, “we use the appellate standard 
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of review for summary judgments.” Foreman v. Auto Club Prop.-Cas. Ins. Co., 

617 S.W.3d 345, 349 (Ky. 2021) (citation omitted). “Because summary judgment 

involves only legal questions and the existence of any disputed material issues of 

fact, an appellate court need not defer to the trial court’s decision and will review 

the issue de novo.” Lewis v. B&R Corp., 56 S.W.3d 432, 436 (Ky. App. 2001)

(citation omitted). 

For insurance claims, specifically, the Kentucky Supreme Court has 

recently held:

Foremost in interpreting an insurance contract we are 

bound by the specific language of the contract before us. 

We apply certain rules of construction to insurance 

contracts, including a rule that when the terms of an 

insurance contract are unambiguous and not 

unreasonable, they will be enforced as written. 

Unambiguously defined terms are “interpreted in the 

light of usage and understanding of the average person.” 

Ambiguous terms and the language of exclusions are 

strictly construed against the insurer so as not to defeat 

the policyholder’s reasonable expectation of coverage. 

But “this rule of strict construction certainly does not 

mean that every doubt must be resolved against the 

insurer and does not interfere with the rule that the policy 

must receive a reasonable interpretation consistent with 

the plain meaning in the contract.”

Foreman, 617 S.W.3d at 349-50 (citations omitted).
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LEGAL ANALYSIS

Here, we must (1) determine whether the insurance providers were 

obligated to provide coverage, and therefore had a duty to defend the Tews; and (2) 

interpret the terms of the policies. We begin with the duty to defend. 

The Kentucky Supreme Court outlined the basic duties of an 

insurance company to defend its insured in James Graham Brown Foundation, 

Inc., v. St. Paul Marine & Fire Insurance Company, 814 S.W.2d 273 (Ky. 1991). 

There, the Kentucky Supreme Court held that an “insurer has a duty to defend if

there is any allegation which” could come within the coverage of the policy. Id. at 

279 (citing O’Bannon v. Aetna Cas. & Sur. Co., 678 S.W.2d 390 (Ky. 1984)).

Under those circumstances, where the policy appears to provide coverage, the 

appropriate course of action for the insured is to commence a declaration of rights 

action. See, e.g., Thompson v. W. Am. Ins. Co., 839 S.W.2d 579 (Ky. App. 1992). 

In this case, the Tews commenced multiple actions to declare rights under various 

policies, but coverage must be found before there is a corresponding duty to defend 

any insured. 

The Tews maintain that only a single allegation needs to fall within 

the scope of coverage for the duty to defend to kick in; therefore, they focus on the 

negligent misrepresentation allegations. They assert that such allegations involve 

the paperwork the Tews submitted, which resulted in the loss of use of a set 
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amount of Danish Kroner. Further, they claim that loss of use of money 

constituted loss of use of tangible property as defined by the KFB Homeowner’s 

Policy. According to the Tews, the same allegations constitute an “occurrence 

resulting in property damage” under the Acuity Policy. Thus, they maintain that

both carriers had a duty to defend under Brown Foundation.

However, the allegations in the complaint are not by themselves 

sufficient to create a duty if the terms of the policy do not potentially provide 

coverage. Brown Found., 814 S.W.2d at 279. An insurer does not always have to

“defend against a claim it believes falls outside the policy it issued.” Cincinnati 

Ins. Co. v. Motorists Mut. Ins. Co., 306 S.W.3d 69, 79. (Ky. 2010). It is well 

established that terms of a policy must be given their plain meaning and enforced 

as drafted with a reasonable interpretation. See St. Paul Fire & Marine Ins. Co. 

Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226 (Ky. 1994). 

Thus, we must interpret the words and terms of the policies at issue. 

As delineated in the provisions of both policies, the coverage is generally available 

only if there is “property damage” caused by an “occurrence” to which coverage 

applies. In that instance alone, the insurers would have a duty to defend. This 

Court simply cannot agree that the SKAT complaints allege any cause of action 

that would constitute an “occurrence” under either of the policies. 
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First, the SKAT complaints allege that the Tews had a duty to provide 

accurate and complete information and that they materially misrepresented or 

misstated applications that they knew or should have known were inaccurate. The 

Tews argue that these are allegations of “accidental” conduct, not intentional 

conduct.

However, Kentucky courts have taken a narrow approach when 

defining “accidents.” In Stone v Kentucky Farm Bureau Mutual Insurance

Company, 34 S.W.3d 809, 812 (Ky. App. 2000), this Court stated that an accident 

is not something that results “from a plan, design, or an intent on the part of the 

insured.” There must be some reasonable limitation and interpretation as to what 

constitutes an accident or occurrence. See Cincinnati, 306 S.W.3d 69. An 

“accident” is generally seen as a fortuitous event. See id. at 73-74. Because

“accident” has not been given a technical meaning in the many cases interpreting 

insurance policies, the courts have given “accident” its plain meaning. Id. at 74

(citing Fryman for Fryman v. Pilot Life Ins. Co., 704 S.W.2d 205 (Ky. 1986)).

Regardless of the degree to which the information provided or 

documents filed were scrutinized or assessed by the Tews in its preparation, there 

was no evidence suggesting it was an accident that it was provided and filed. What 

the Tews did in the early stages should be distinguished from what may have later 

come to light. In their brief, the Tews reference some information as what “[t]he 
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Tews learned, long after this litigation began.” Specifically, the Tews maintain 

that they only learned afterward that large blocks of shares were being purchased 

by insiders at ED&F, who then fraudulently cycled those shares between multiple 

fund accounts on the dividend date and manipulated the accounts to hide this 

activity. Even if the Tews did not intend to participate in the fraudulent activity, 

they intended to execute the documents. The Tews may have later learned that the 

water in the SKAT pool, so to speak, was contaminated; however, it was no 

accident that they chose to dive into that pool in the beginning.

Secondly, the complaints by SKAT alleged loss of use of money due 

to this fraudulent tax scheme. In a creative discussion of fiat money and how 

Danish Kroner is not backed by gold or any commodity, the Tews assert that the 

monetary damages SKAT sought in its filings constituted loss of use of “tangible 

property,” as defined by each of the policies. 

This raises an interesting discussion as to whether money is tangible 

property. Several courts in other states have largely held that it is not.

3 We have 

not found, nor has any party referred us to, any Kentucky caselaw which directly 

addresses whether money constitutes tangible property. However, the federal 

3

See, e.g., Mack v. Nationwide Mut. Fire Ins. Co., 517 S.E.2d 839 (Ga. Ct. App. 1999);

Travelers Indem. Co. of Am. v. Jim Coleman Auto. of Columbia, LLC, 236 F. Supp. 2d 513 (D. 

Md. 2002); Snug Harbor, Ltd. v. Zurich Ins., 968 F.2d 538 (5th Cir. 1992); Johnson v. Amica 

Mut. Ins. Co., 733 A.2d 977 (Me. 1999); Walker v. State Farm Fire and Cas. Co., 569 N.W.2d 

542 (Minn. Ct. App. 1997).
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district court for the Eastern District of Kentucky, called to determine coverage 

and/or any duty to defend the Tews on a separate claim against a different 

insurance carrier, did a thorough analysis of this very argument. Travelers Indem. 

Co. of Am. v. Tew, No. 5:20-cv-292-JMH, 2021 WL 5380944, at *5 (E.D. Ky. 

Nov. 17, 2021).

Having reviewed these policies and briefs before us, we do not believe 

we could state our view any better than what was stated therein:

[M]oney is not tangible property. Instead, money is 

intangible property, as it does nothing more than 

represent value while having no intrinsic value of its 

own. This is exemplified by the fact that money can be 

deposited and transferred electronically, which 

unquestionably makes money intangible. That money 

may also come in a physical form, such as a United 

States Dollar, or in this case, a Danish Kroner, is 

inconsequential regarding whether money is tangible 

property because the tangible embodiment of money can 

be converted to an inarguably intangible medium without 

losing its value, meaning the Danish Kroner itself is not 

what has value. Since money is not tangible property, 

there was no loss of tangible property triggering [the 

insurance company’s] duty to defend and, thus, no breach 

of that duty entitling [the Tews] to either defense costs or 

damages. 

Travelers Indem. Co. of Am. v. Tew, No. 21-6129, 2022 WL 3696676, at *1-2 (6th

Cir. Aug. 26, 2022) (quoting Travelers Indem. Co. of Am. v. Tew, 2021 WL 

5380944, at *5).
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We agree and conclude that the damages alleged by SKAT did not 

implicate either of the policies, as there simply was no loss of tangible property. 

The alleged conversion of refunds in this case resulted in an intangible economic 

loss, rather than a loss of use of tangible property.

The insurers both make further arguments pertaining to the various 

exclusions from coverage under the respective policies. The Kentucky Supreme 

Court has held that if an event does not fall within the terms of the coverage, then 

there is no need to determine whether the exclusions apply because coverage is 

already denied. Cincinnati, 306 S.W.3d at 78 n.35 (Ky. 2010) (citation omitted) 

(“[A] court need not consider the applicability of an exclusion if there is no initial 

grant of coverage under the policy.”).

The Tews make further arguments pertaining to the “occurrence” 

period of the KFB Homeowner’s Policy and whether there would be any coverage 

owed if there was property damage that occurred during the policy period (even 

though that policy was not in effect until three years after the alleged acts). Having 

already concluded that the loss of money alleged by SKAT was not a loss of 

tangible property, so as to invoke property damage coverage, we need not address 

that argument either. As a matter of law, the policies did not cover the SKAT 

litigation and the insurance companies had no duty to defend or indemnify the 

Tews.
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The trial court found the same. Specifically, the court found no cause 

of action that would constitute an “occurrence” under either policy and found no 

“property damage” occurred, as defined in the Acuity Policy. As to the KFB 

Homeowner’s Policy, the loss of use of money would not constitute “damage to

tangible property.” We hereby affirm the rulings of the Woodford Circuit Court, 

finding there was no disputed material issue of fact. The Woodford Circuit Court 

properly granted summary judgment, finding the insurance companies’ policies did 

not cover any portion of the SKAT litigation. 

ALL CONCUR.

BRIEFS FOR APPELLANTS:

Justin S. Peterson

Kellie M. Collins

Taylor M. Shepherd

Lexington, Kentucky

BRIEF FOR APPELLEE ACUITY, A 

MUTUAL INSURANCE 

COMPANY:

Jason S. Morgan

Betsy R. Catron

Lexington, Kentucky

BRIEF FOR APPELLEE KENTUCKY 

FARM BUREAU MUTUAL 

INSURANCE COMPANY:

R. Craig Reinhardt

Lexington, Kentucky