NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 12a0452n.06

Nos. 10-3866, 10-3867

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MEDICAL PROTECTIVE COMPANY,

Plaintiff-Appellee,

v.

GREGORY G. DUMA,

Defendant-Appellant,

and

MICHELLEHEINRICH; DENNY HEINRICH;

CAMERON HEINRICH,

Intervenors Defendants-Appellants.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO

OPINION

Before: GILMAN, ROGERS, and STRANCH, Circuit Judges.

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.
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Medical Protective Company v. Duma, et al.

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

had 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

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policyexcluded 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

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“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 F. App’x 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). “[C]ourts 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:

Kentucky 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 KentuckyRevised 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

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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).

We addressed this issue in State Farm Mutual Automobile Insurance Co. v. Wilson, noting

that the Kentucky Supreme Court did not explain how it determined from the language of Ky. Rev.

Stat. § 222.202(1) that a criminal adjudication of guilt was required for the contract exclusion to

apply. 26 F. App’x at 496-97. Lacking such explanation, we compared the statutes at issue in both

cases and determined that the Kentucky statute in Wilson, Ky. Rev. Stat. § 514.100(1), was similar

enough to the Healthwise statute, Ky. Rev. Stat. § 222.202(1), to predict that the Kentucky Supreme

Court would follow its Healthwise decision and hold that a criminal adjudication of guilt was also

necessary in Wilson. Id. Specifically, we noted that the parallel structure of both statutes began, “A

person is guilty of [this offense] when . . . .” Wilson, 26 F. App’x at 496-97; Ky. Rev. Stat.

§§ 222.202(1), 514.100(1).

Such statutory analysis dictates the same result here. The Kentucky statute for wanton

endangerment is similarly constructed, beginning, “A person is guilty of wanton endangerment in

the second degree when . . . .” Ky. Rev. Stat. § 508.070(1). Therefore, as we held in Wilson, if

Healthwise were the Kentucky Supreme Court’s last word on this issue, that court would hold on

these facts that Duma is not excluded from insurance coverage based on the criminal-act exclusion

because there has been no criminal adjudication of guilt.

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The Kentucky Supreme Court, however, had rendered another decision that also impacted

this Court’s analysis in Wilson. It decided Employers Ins. of Wausau v. Martinez, 54 S.W.3d 142,

143 (Ky. 2001), a cemetery burial misconduct case holding that a criminal adjudication of guilt is

not always required in order to trigger a policy exclusion for “willful violation of a penal statute.” 

There, the KentuckySupreme Court did not overrule Healthwise; it simply found a narrow exception

to it, determining that when the insured admits all necessaryelements of the relevant criminal statute,

a criminal adjudication is unnecessary. Id. at 144. Based on a century-long practice of over burying

the cemetery and reusing and reselling occupied graves, the court opined: “In this case, no question

exists as to whether [the insured] violated a penal statute; such violations were admitted.” Id. We

applied this analysis in Wilson and found that the insured’s admission in the answer to the complaint

and the testimonial evidence amounted to an “effective admission of guilt” under the relevant

Kentucky criminal statute. A criminal adjudication of guilt was, therefore, not required to trigger

the vehicle insurance policy’s exclusion for those “not in lawful possession” of the vehicle. 26 F.

App’x at 495, 497-98.

There has been no criminal adjudication of Duma’s guilt of the crime of wanton

endangerment. Therefore, under Healthwise and Martinez, the policy exclusion for criminal acts

does not apply here unless Duma’s testimony amounts to an effective admission of the elements of

the crime of wanton endangerment, Ky. Rev. Stat. § 508.070(1).1

The dissent urges that Martinez effectively limits the holding of Healthwise to its facts. We 1

disagree based on the analysis in those cases. Additionally, such an overly broad reading of the

unique facts in Martinez would result in a problematic procedure: where neither a criminal

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Kentucky Revised Statute § 508.070(1) provides that a person is guilty of wanton

endangerment “when he wantonly engages in conduct which creates a substantial danger of physical

injury to another person.” The state court determination of Duma’s recklessness is not sufficient

because Kentucky’s substantive criminal law draws a distinction between reckless conduct and

wanton conduct. “A person acts recklessly with respect to a result or to a circumstance . . . when he

fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance

exists.” Ky. Rev. Stat. § 501.020(4). “A person acts wantonly with respect to a result or to a

circumstance . . . when he is aware of and consciously disregards a substantial and unjustifiable risk

that the result will occur or that the circumstance exists.” Ky. Rev. Stat. § 501.020(3). Wanton

conduct has a higher threshold of culpability attached to it under Kentucky law and, consequently,

requires a showing of actual awareness of the risk on the part of the individual, not merely the

presence of that risk. It is undisputed in this case that Duma’s conduct amounted to a “substantial

adjudication nor an admission is present, a civil jury would be permitted to determine if a particular

criminal statute has been violated. The dissent’s proposal was considered and rejected by the

Kentucky Supreme Court in Healthwise:

Healthwise argues that a jury should be allowed to determine whether Anglin was

legally intoxicated no matter what statute is used to define “legal intoxication.” We

reject this argument. The standard of proof is significantly different between civil

and criminal proceedings. Moreover, the stakes are significantly different in the two

proceedings. Further, even if the jury were to be instructed on the higher standard

on the question of legal intoxication, Anglin still would not have attained the status

of being legally intoxicated because no criminal penalty would attach to the

adjudication.

956 S.W.2d at 218.

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and unjustifiable risk.” Therefore, this case turns on whether Duma admitted that he was actually

aware of and consciously disregarded this risk.

The definition of “wantonly” includes a proviso: “A person who creates such a risk but is

unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.” 

Ky. Rev. Stat. § 501.020(3). When this provision is applicable, the elements of “voluntary

intoxication” supplant the mental state or intent element in the definition of wantonly. Voluntary

intoxication is defined as “intoxication caused by substances which the defendant knowingly

introduces into his body, the tendency of which to cause intoxication he knows or ought to know,

unless he introduces them pursuant to medical advice or under such duress as would afford a defense

to a charge of crime.” Ky. Rev. Stat. § 501.010(4).

Duma admitted as part of his state-court trial strategy that he knew he was consuming alcohol

while he was on call at the hospital. And the amount of alcohol that he drank—the majority of a fifth

of vodka—was enough that he “ought to know” it would have “the tendency to cause intoxication.” 

See Ky. Rev. Stat. § 501.010(4). His defense was instead based on the theory that his intoxication

was not the cause of the harm to the Heinrichs.

Duma’s testimony that he did not believe that he would still be drunk at the time of the

delivery is therefore immaterial. Whether Duma was actually aware of the risk his conduct created

is irrelevant because Kentucky Revised Statute § 501.020(3) characterizes his conduct as wanton

simply on the basis of his knowing self-intoxication and the objective fact that his conduct created

a substantial risk of harm to another. Thus, Duma has admitted all the composite elements of the

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crime of wanton endangerment and, as a result, the Martinez exception to the Healthwise rule

governs. See Martinez, 54 S.W.3d at 145.

In orderfor the criminal-act exclusion in Duma’s malpractice policy to apply, however, MPC

must show not only that Duma committed the criminal act of wanton endangerment, but also that

the Heinrichs’ “damages [we]re in consequence of the performance of [that] criminal act.” This

issue was resolved in the present case by the state-court jury’s verdict in the trial between the

Heinrichs and Duma. The jury found that Duma “failed to comply with his duty [to exercise that

degree of care and skill ordinarily expected of a reasonably competent obstetrician under the same

or similar circumstances] and that such failure was a substantial factor in causing injury” to the

Heinrichs.

We are bound by this factual finding. The substantial-factor standard is sufficient to support

a finding that the injuries were “in consequence of” Duma’s criminal act, since the policy language

does not require that the criminal act be the sole factor causing the injuries. As such, the jury’s

finding is sufficient to trigger the criminal-act exclusion in Duma’s malpractice insurance policy.

III. DISCOVERY ISSUE

Finally, to the extent that it makes any difference at this point, we reject the Heinrichs’

argument that the district court should have allowed more time for discovery. In November and

December 2009, the Heinrichs filed a motion for extension of time to complete discovery and a

motion to continue the discovery deadline, which the court granted. The Heinrichs served discovery

on MPC on December 28, 2009. On January 6, 2010, MPC moved for summary judgment. Duma

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filed a cross-motion for summary judgment on January 25, 2010. On January 27, 2010, the

Heinrichs filed a motion for an extension of time to respond to MPC’s motion. They argued that the

information they requested from MPC would “be beneficial and necessary in responding to

Plaintiffs[’] motion for summary judgment,” and so asked for a twenty-day continuance, until

February 15, 2010, “to permit discovery to be had.” MPC claims that the Heinrichs received their

requested discovery the following day, on January 28, 2010; the Heinrichs do not contest this fact. 

The Heinrichs filed no response to MPC’s motion for summary judgment.

The district court held a motion hearing on May 24, 2010. At the hearing, the court asked

counsel for the Heinrichs whether the Heinrichs intended to have “an active role” in the summary

judgment proceedings. Counsel responded that they would defer to counsel for Duma “and then

make that assessment as the argument proceeds.” Eventually, they concluded they had nothing they

wanted to add, after the judge asked both at the end of Duma’s argument and at the close of the

hearing. In granting MPC’s motion for summaryjudgment on June 18, 2010, the district court found

that, because the Heinrichs’ motion for an extension of time was filed six months earlier and because

they had filed nothing in the interim, “this Court assumes that Counsel for the [Heinrichs] have

decided not to file a separate response to [MPC’s] motion for summary judgment” and so denied the

motion as moot.

The district court acted within its discretion in doing so. Discovery concluded on January

28, 2010. The Heinrichs had ample time after that point to respond to MPC’s motion for summary

judgment if they so chose; they chose not to. The district court extended the opportunity to the

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Heinrichs again at the motion hearing in May to respond to MPC’s motion; again, they chose not to. 

Their January 27 motion asked only for additional time to receive discovery already requested; there

is no mention of planning to request additional discovery. If the Heinrichs were to obtain any

documentation to support their arguments, they would have received it on January 28, and so could

have argued it at the motion hearing. The district court could reasonably conclude that the Heinrichs

were not planning to file a response, and therefore did not abuse its discretion in denying their

motion for an extension of time.

IV. CONCLUSION

We affirm the grant of summary judgment to MPC.

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ROGERS, Circuit Judge, dissenting. In Healthwise of Kentucky, Ltd., v. Anglin, 956 S.W.2d

213 (Ky. 1997), the KentuckySupreme Court required a criminal adjudication in orderfor an illegalintoxication exclusion to apply in a case involving a driving-while-intoxicated crime. In Employers

Ins. of Wausau v. Martinez, 54 S.W.3d 142 (Ky. 2001), the Kentucky Supreme Court later applied

a policy’s criminal-act exclusion notwithstanding the absence of a criminal adjudication, where the

insured admitted the criminal act. In a case involving neither an illegal intoxication crime nor an

admission, there are two possible ways to interpret the current state of Kentucky law: either (a)

Healthwise states the general rule that an adjudication is required, and Martinez provides an

exception in the case of an admission; or (b) Martinez states the general rule that an adjudication is

not required, but Healthwise provides an exception in the case of policy exclusions that require a

criminal status of legal intoxication. The majority reads Kentucky law as (a), but the majority’s

analysis in this regard is not necessary to its conclusion, as the majority goes on to hold that there

was an effective admission in this case. It is necessary for me to decide between (a) and (b),

however, because in my view there has not been an effective admission of the crime of wanton

endangerment here, as explained in part II below. A fair reading of the later of the two relevant

Kentucky Supreme Court cases moreover shows that (b) is correct: Martinez provides the general

rule and Healthwise a narrow exception. A remand for a fact-finding as to whether Duma committed

wanton endangerment is therefore required.

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I.

It is unlikely that the Supreme Court of Kentucky would interpret the words in Duma’s

insurance policy to require some sort of criminal adjudication before the exclusion could apply. The

plain meaning of the words does not require a criminal adjudication, and such a requirement could

easily have been articulated in the contract. Moreover, reading the words to impose a prioradjudication requirement would lead to the unlikely result that the insurance company would be

responsible for behavior clearly intended to be excluded, such as euthanasia or inserting smuggled

drugs in a “mule,” merely because the insured happened for one reason or another not to be

prosecuted or convicted. The words of the contract do not bear such a result.

The only possible basis for anticipating such a contract interpretation is a KentuckySupreme

Court case that has subsequently been limited so as to preclude its applicability in the present case.

It is not likely that the Supreme Court of Kentucky would extend its reasoning from the context of

a “legal intoxication” exclusion in Healthwise, 956 S.W.2d at 215-16, to one involving a criminalact exclusion. Several factors support this conclusion. First, the Healthwise court disposed of a

criminal act exclusion that was also relied upon by the insurance company on an entirely different

ground, one not relied upon in the present case. See id. at 216-17. Second, extending the reasoning

used by the Healthwise court in the context of “legal intoxication” exclusions to criminal act

exclusions would lead to a far more sweeping modification of the parties’ obvious intent than the

“legal intoxication” analysis of the Healthwise court.

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Third, and most compellingly, the Supreme Court of Kentucky has more recently held, in the

factually closer context of a policy exclusion for “willful violation of a penal statute,” that the

provisions of the insurance policydid not require that the insured have been convicted of the offense. 

Martinez, 54 S.W.3d at 143. The case involved a claim for civil damages arising from cemetery

mismanagement and misconduct; the insured admitted that various crimes were committed, but

argued that under Healthwise the exclusion did not apply because there was no criminal conviction. 

Id. The Supreme Court of Kentucky reasoned:

We agree with Appellant that the Court of Appeals incorrectly interpreted and

misapplied Healthwise, supra, and that it is inappropriate to find coverage in a policy

that is meant to cover professional errors or mistakes, when the claims made arise

from deliberate and systematic wrongful acts. The criminal conviction which the

Court of Appeals would require is not expressed by the terms of the policy. We

required an adjudication of the alcohol intoxication “status” in Healthwise, supra,

because, while the use of alcohol alone did not trigger the exclusion, intoxication did. 

Because intoxication was not defined expressly in the penal code, it required a court

determination. In this case, no question exists as to whether LCC violated a penal

statute; such violations were admitted.

Id. at 145. 

It is true that there is no unequivocal admission of a criminal violation in this case, and that

Martinez could possibly be distinguished in this regard. But the rejection in Martinez of the

Healthwise rationale is forceful. If faced with the present case it is likely the Kentucky Supreme

Court would conclude, as in Martinez, that in the case of “deliberate and systematic wrongful acts,”

requiring a criminal conviction “is not expressed by the terms of the policy.” Id.

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II.

This leaves the question of how the insurance company can show a criminal violation in the

absence of either a criminal adjudication or an admission of criminal conduct. There is no reason

not to apply in this case the normal fact-finding processes of the federal court. Summary judgment

is warranted only if there is no genuine issue of material fact. On the record before us it cannot be

said that there is no genuine of material fact as to whether Duma’s actions were wanton. The district

court relied on the state court findings of negligence and recklessness that were necessary for a

determination of liability and an award of punitive damages, as well as Duma’s admissions that he

drank almost a fifth of vodka knowing that he would have to deliver a baby later that day.

The state court determination ofrecklessnessis not sufficient because Kentucky’s substantive

criminal law draws a distinction between reckless conduct and wanton conduct. “A person acts

recklessly with respect to a result or to a circumstance . . . when he fails to perceive a substantial and

unjustifiable risk that the result will occur or that the circumstance exists.” Ky. Rev. Stat.

§ 501.020(4). “A person acts wantonly with respect to a result or to a circumstance . . . when he is

aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or

that the circumstance exists.” Ky. Rev. Stat. § 501.020(3). Wanton conduct has a higher threshold

of culpability attached to it under Kentucky law, and consequently requires a showing of actual

awareness of risk on the part of the individual, not merely the presence of that risk.

Moreover, the language in the definition of wanton concerning voluntary intoxication does

not lead to a different result. The definition of wanton provides: “A person who creates such a risk

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but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect

thereto.” Ky. Rev. Stat. § 501.020(3). The statutory provision does not make voluntary intoxication

wanton; it keeps an action otherwise wanton from losing its wanton nature just because the actor is

intoxicated. A wanton endangerment—say, playing Russian roulette—does not lose its wanton

nature if the player is voluntarily drunk. But someone whose actions are reckless but not wanton if

he is sober does not by the terms of this statutory provision become wanton because he is voluntarily

intoxicated.

It is accordingly a mistake to read the final sentence of Ky. Rev. Stat. § 501.020(3)’s

“wantonly” definition as supplanting the intent element of the wanton endangerment crime by

replacing the defendant’s awareness of the risk with the defendant’s knowledge of excessive alcohol

consumption. Such a reading would eliminate the intent element of wanton endangerment and create

a new and different crime: endangerment while voluntarilyintoxicated. The language of the criminal

statute does not permit such a reading

It is true that Duma admitted in his deposition that he drank nearly a fifth of vodka and

proceeded to deliver a baby. It is also not contested that these actions were reckless, and we may

accept the state court’s determination that the recklessness caused the injury to the child. But all of

this does not necessarily prove the more culpable state of wantonness. Whether such an action is

wanton in addition to being reckless is something as to which reasonable minds could differ.

Duma’s actions in this case are not in dispute, but the criminality of the crime of wanton

endangerment is predicated not on the act, but the mindset behind it. Duma induced Michelle

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Heinrich and then drank a large quantity of alcohol, knowing full well that later that day he would

have to deliver her baby. Both the act of drinking under these circumstances and the act of going

ahead with the delivery could be interpreted as being “aware of and consciously disregard[ing] a

substantial and unjustifiable risk.” See Ky. Rev. Stat. § 501.020(3). The act might also be

considered a failure “to perceive a substantial and unjustifiable risk . . . [that] constitutes a gross

deviation from the standard of care that a reasonable person would observe,” which is the definition

of recklessness. Ky. Rev. Stat. § 501.020(4). This is not a situation where Duma stumbled into a

delivery room with slurred speech and obvious signs of drunkenness. His behavior was ordinary

enough that no one stopped him from delivering Cameron Heinrich; only later was a blood alcohol

test administered because of the noticed smell. As for Duma’s drinking in the first place, his

testimony suggests that he did not expect the alcohol to affect him deleteriously by the time of the

delivery. The line between reckless medical practice and wanton endangerment in these

circumstances is close enough that reasonable fact finders could differ. This narrow basis precludes

summary judgment for the insurer. On the record before us, there is not enough to take from a factfinding judge or jury the factual determination of whether Duma’s actions were wanton.

III.

I would vacate the grant of summary judgment to MPC and remand for further proceedings.

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