NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0452n.06 Nos. 10-3866, 10-3867 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

MEDI CAL PROTECTI VE COMPANY, Plaintiff-Appellee ,
v. GREGORY G. DU MA, Def endant- Appellant, and M I CH E L L E H E I

N RI CH ; D ENNY HEI

NRI CH ; CAMERON HEI

NRI CH, I nterve nors Def

endants-A

ppellants. )

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O

OPI NI ON

Before: G ILMAN, ROG ERS, an d ST RANCH, Cir cuit Judges. JANE B. STRANCH, Circuit Judge. Medica l Protective Company , Dr. Gre g ory Duma’s profe ssion al l i ab i l ity insurer, was contra ctually obliga ted to indemnify Duma for his malprac tice liability in delivering Michelle Heinric h’s child while intox icated unless, under a policy exclusion, the damag es wer e “in conseque nce of the perf ormanc e of a criminal act.” T h e i n s u re r soug ht to disclaim cover ag e and the d i s t rict court g rante d it summary judgme nt on the g round that Duma’s actions constit uted t he crime of wa nton endang erme nt under Kentucky law. Be cause a finding of wanton endang erme nt w as proper ly based upon Duma’s admissions, we must aff irm the judgme nt of the district cour

t.Nos. 10-3866, 10-3867

Medic al Protective Company v. Duma, e t al.

I. F ACTS I n J uly 2005, Gre g ory

Duma, a phy sician, applied f or and was issued prof

essional liability insurance by Medica l Protective Company (“MPC”). The policy included an exclusion stating that it did not cover “pay

m en t o f d amag es (B UT WI L L DEF END) in any claim for damag es if said damag es ar e in conse quence of the pe rfor mance of a c riminal act or w illful tort or sex ual ac t.” Duma was employ ed by St. Eliz abeth Medica l Center i n E d gewood, Kentucky

. On the morning of October 23, 2005, he examined Mic helle Heinric h and induce d labor. He then left the hospital and proce eded to drink a larg e quantity of vodka in a near by park. He re t u rn ed to the hospital that afte rnoon to deliver Heinric h’s baby , Cameron Heinric h. Both child and mother suffe red labor-r elated injuries. During the delivery , Duma’s behavior was ordinary enoug h that no

one stopped him from delivering Cameron. After the delivery , howeve r, it wa s noticed that Duma smelled of alcohol, and so a blood alcohol test was administered. The test rec orded a blood alcohol content of .27, w ell above the Kentucky leg al limit of .08. The He inrich family sued Duma and the hospital in state court and MPC defe nded Duma. The jury found both Duma and the hospital at fault, and assig ned punitive damag es ag ainst Duma. The jury instructions provided that punitive damag es wer e allowed only if the jury found that Duma had ac ted in rec kless disreg ard f or the lives or sa fety

of the He inrichs. I n October 2008, MPC filed a complaint in district court asking the court to resc ind and hold void Duma’s profe ssional liability policy becau s e h e d id not disclose his alcoholism, or, in the alterna tive, to find that MPC had no duty to indemnify Duma in the Heinric h litigation beca use the

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Medic al Protective Company v. Duma, e t al. policy excluded damag es resulting from a criminal act. MPC arg ued that Duma’s actions constituted wanton endang erme nt, a misdemeanor under K entucky law. See Ky . Rev. Stat. § 508.070(1); Ky

. Rev. Stat. § 501.020(3). All parties ag ree d that Kentucky law applied to the case. M i ch el l e Heinric h, her husband Denny Heinric h, and Cameron Heinric h intervene d in the case the following y ear . Both sides moved for summary judgme nt and MPC’s motion was g rante d. 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 d ef i n i t i o n of wanton endang erme nt in the second de g ree . The district cour t also found that, on the fa cts prese nted, “no

rea sonable juror could find” that the damag es the Heinric hs suffe red wer e other than a conseque nce of Duma’s behavior , b as ed i n p ar t on the fac t that no evidenc e was prese nted to show that the injuries sustained by

the Heinr ichs “would ha ve occ urre d reg ardle ss of Duma’s intoxi cation.” Duma and the Heinric hs timely appea led both the g rant of summary judgme nt for MPC and the denial of

Duma’s c ross motion. II. ANALYSIS Whether summary judgme nt was proper ly base d o n the policy exclusion depends on the meaning of the lang uag e of the contra ct—a leg al issue. The fir st question is whether the wor ds of the exclusion require some sor t of criminal adjudica

tion. Kentucky courts dema

nd that the applicability of an exclusion be unambig uous befor e it is honored. This is based on the twin car dinal principles that (1) insurance contra cts must be construed

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Medic al Protective Company v. Duma, e t al.

“so that all doubts perta ining to cover ag e are resolved in the ins u red’s favor ,” and (2) exclusions must be rea d to make insurance eff ective whene ver rea sonably possible. State Farm Mut. Auto. Ins. Co. v. W ilson , 2 6 F. Ap p ’x 490, 494 (6th Cir. 2002) (citing Ky. Farm Bureau Mut. Ins. Co. v. McKinney , 831 S.W .2d 164, 166 (Ky

. 1992 ))

. But “whe re the lang uag e of an insurance policy is clea r and unambig uous, it cannot be construed to mean other wise than what it say s.” Simpsonville W reck er Serv., Inc., v. Empire Fire & Marine Ins. Co. , 793 S.W .2d 825, 829 (Ky

. App. 1989) (interna l citation omitted). “[C] ourts should not rew rite an insurance contra ct to enlar g e the risk to the insurer.” St. Paul Fire & Marine Ins. Co. v. Powell-W alton-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). I n Healthwise of

Kentucky , Ltd., v. Anglin , 956 S.W. 2 d 2 1 3 , 2 1 5 -16 (Ky

. 1997), the Kentucky Supreme Court ref

used to hold that an exclusion of cover ag e for injuries “sustained as a res u lt of being under the influence of alc ohol (leg al intox ication as de fined by Kentucky

law)” applied to a

man with a blood alcohol content (B AC) 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 d et er m i n ed that the lang uag e of the ex clusion require d a leg al adjudica tion of the crime be fore the ex clusion could be applied. Id . at 217. The c ourt held: Kentucky law does not g ive a definition for leg al intox ication which is e x clusive to alcohol. That is, there is no statute that states, “Alcohol I ntox ication means . . . .” I nstead, contained in Kentucky Revised Statutes are a number of statutes which make the state of alcohol intox ication, under vary ing circ umstances, a punishable offe nse. I t is from these statutes that the Court of Appea ls adopted a defi n ition for leg al alcohol intox ica t i o n . T h e statute chosen by the Court of Appea ls is particula rly appropr iate beca

use it is limit ed solely to alcohol intox ication. Un der t h e defining statute chos en b

y t h e Court of Appeals, the status of legal alcohol intoxication is

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Medic al Protective Company v. Duma, e t al.
determine d through adjudication in a criminal procee ding. Thus, we ag ree with the Court of Appea ls that for the exclusion to apply to Ang lin “he m u s t n ot only have acte d in a man n er descr ibed under KRS 222.202(1), but he must have been adjudicate d g uilty

of such c onduct.” 956 S.W .2d at 217-18 (e mphasis added)

. We addre ssed this issue in State Farm Mutual Automobile Insurance Co. v

. W ilson , noting that the Kentucky Supreme Court did not explain how it deter mined from the lang uag e of Ky

. Rev. Stat. § 222.202(1) that a criminal adjudication of g uilt was require d for the co n t ra ct ex clusion to apply

. 26 F. App’x at 496-97. L acking such explanation, we compar ed the statutes at issue in both

case s and deter

mined that the Kentucky statute in W ilson , Ky

. Rev. Stat. § 514.100(1), was simil ar enoug h to the Healthwise statute, Ky

. Rev. Stat. § 222.202(1), to predic t that the Kentucky Supreme Court would follow its Healthwise decision and hold tha t a criminal adjudication of g uilt wa s also

nece ssary in W

ilson

. Id. Specifica lly , we noted that the para llel structure of both statutes beg an, “A p er s o n i s gu i l t y of [t his offe nse] when

. . . .” W ilson , 26 F. App’x at 496-97; Ky

. Rev. Sta t
. §§ 222.202(1), 514.100( 1). Such statutory analy sis dictates the same result here

. The Kent u ck y statute for wanton endang erme nt is simil arly constructe d, beg inning, “A person is g uilty of wa nton endang erme nt in the second deg ree wh en . . . .” Ky

. Rev. Stat. § 508.070(1). There fore , as we held in W ilson , if Heal t h w i s e wer e the Kentucky Supreme Court’s last word on this issue, that court would hold on these fac ts that Duma is not excluded from insurance cover ag e based on the criminal-a ct exclusion beca use there has bee n no criminal adjudica tion of g uilt.

- 5 -Nos. 10-3866, 10-3867

Medic al Protective Company v. Duma, e t al. The Kentucky Supreme Court, howeve r, had rende red another de cision that also impacted this Court’s analy sis in W ilson

. I t de cided Employe rs I ns. of W ausau v. Martinez , 54 S.W .3d 142, 143 (Ky

. 2001), a ceme tery burial m isconduct case holdi ng that a cr iminal adjudication of g uilt is not a lway s require d in or der to tr igg er a policy exclusion for “willful violation of a penal statute.” There , the Kentucky Supreme Court did not overr ule Healthwise ; it simply found a narr ow exception to it, deter mining that when the insured admits all nece ssary elements of the rele vant criminal statute,

a criminal adjudication is unnece ssary . Id. at 144. Ba sed on a centur y -long prac tice of over bury ing the ceme tery and reusing and rese lling occupie d g rave s, the court opined: “I n this case , no question exis ts as to whether [t he insured] violated a penal statute; such violations we re admitted.” Id. We applied this analy sis in W

ilson and found that the insured’s admission in the answe r to the complaint and the testimoni al ev i d en ce amounted to an “ef fec tive admission of g uilt” under the rele vant Kentucky criminal st atute. A criminal adjudi cation of g uilt was, therefor e, not require d to trig g er 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 g uilt of th e crime of wanton endang erme nt. There fore , under Healthwise and Martinez , the pol i cy ex clusion for criminal acts does not apply here unless Duma’s testimony amounts to an eff ective admission of the elements of the cr ime of wa

nton endang erme nt, Ky . Rev. Stat. § 508.070(1). 1

The dissent urg es that Martinez eff ectively limit s the holding of Healthwise to its fac ts. We 1 disag ree based on the analy sis in t h o s e ca ses. Additionally , such an overly broad rea ding of the unique fac ts in Martinez would result in a problematic proce dure: wher e neither a crimi nal - 6 -Nos. 10-3866, 10-3867

Medic al Protective Company v. Duma, e t al. Kentucky Revised Statute § 508.070(1) provides that a person is g uilt y o f wa n t on endang erme nt “whe n he wantonly eng ag es in conduct which cre ates a substantial dang er of phy sical injury to another person.” The state court deter mination of Duma’ s re ck l es s ness is not sufficie nt beca use Kentucky ’s substantive criminal law draw s a distinction b et we en reckless conduct and wanton conduct. “A person acts rec klessly with respe ct to a result or to a circ umstance
. . . when he fails to perc eive a substantial and unjustifiable risk that the result will occur or that the circ umstance

ex i s t s . ” Ky

. Rev. Stat. § 501.020(4). “A person acts wantonly with respe ct to a result or t o a circ umstance
. . . when he is awa re of and consciously disreg ards a substantial and unjustifiable risk that the res u l t wi l l o ccur or that the circ umstance exis ts.” Ky

. Rev. Stat. § 501.020(3). Wanton conduct has a highe r threshold of culpability attache d to it under Kentucky law and, conseque ntly , require s a showing of actua l awa rene ss of the risk on the part of the individ u al , n o t m er ely the prese nce of that risk. I t is undisput ed in this c ase that Duma’s conduct amounted to a “substantial

adjudication nor an admission is prese nt, a civil jury would be permitted to deter mine if a particula

r criminal statute has been violated. The dissent’s propo s al was considere d and reje cted by the Kentucky Supreme Court in Healthwise : Hea lthwise arg ues that a jury should be allowed to deter mine whether An gl i n was leg ally intox icated no matter what statute is used to define “leg al intox ication.” We reje ct this arg ument. The standard of proof is significantly differ ent betwee n civil and criminal proce eding s. Moreove r, the stakes are signific antly differ ent in the two proce eding s. Fur

ther, ev en i f the j ury wer e to be ins tructed on the hi g her standard on the question of leg al intox ication, Ang lin still would not have attained the status o f being leg ally intox icated beca use no criminal penalty would attach to t h e adjudication. 956 S.W .2d at 218. - 7 -Nos. 10-3866, 10-3867

Medic al Protective Company v. Duma, e t al. and unjustifiable risk.” T here fore , this case turns on whether Duma admitted that he wa s actua lly

awa re of and consc iously

disreg arde d this risk. The definition of “wantonly ” includes a proviso: “A pe rson who cr eate s such a risk but is

unawa re there of solely by rea son of voluntary intox ication also acts wantonly with respe ct there to.” Ky

. Rev. Stat. § 501.020(3). When this provision is ap p l i ca b l e, the elements of “voluntary intox ication” supplant the m ental st ate or intent element i n the definiti on of wantonly

. Voluntary intox ication is define d as “intox ication cause d by substances which the d ef en d ant knowing ly introduces into his body , the t endenc y of which to cause intox ication he knows or ought to know, unless he introduces them pursuant to medical advice or under such duress as would aff ord a defe nse to a cha rg e of c rime.” K

y . Rev. Stat. § 501.010(4). Duma admitted as part of his state-c ourt trial strateg y 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—wa s enoug h that he “oug ht to know” it would have “the tendenc y to cause intox ication.” See Ky

. Rev. Stat. § 501.010(4). His defe nse was instead based on the theory that his intoxi cation was not the c ause of

the har m to the Heinrichs. Duma’s tes t i m o n y t h at he did not believe that he would still be drunk at the time of the delivery is there fore immaterial. Whether Duma was actua lly awa re of the risk his conduct cre ated is irrele vant beca

use Kentucky Revised Statute § 501.020(3) ch ar ac terizes his conduct as wanton simply on the basis of his know ing self-intoxi cation and the objective fac t that his conduct cre ated a subst antial risk of har m to another

. Thus, Duma has admitted all the composi te elements of t he

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Medic al Protective Company v. Duma, e t al.

cr i m e o f wanton endang erme nt and, as a result, the Martinez exception to the Healthwise rule g overns. See Martinez , 54 S.W .3d at 145. I n order for the criminal-a ct exclusion in Duma’s malprac tice policy to apply , howeve r, MPC must show not only that Duma commit ted t h e criminal act of wanton endang erme nt, but also that the Heinric hs’ “dama g es [we]re in co n s equenc e of the perf ormanc e of [t hat] criminal act.” This issue was resolved i n t h e p resent case by the state-c ourt jury ’s verdic t in the trial betwee n the Heinric hs and Duma. The jury fo u n d t h at Duma “failed to comply with his duty [t o exercise that deg ree of car e and skill ordinar ily expected of a rea sonably competent obstetrician under the same

or simil ar ci rcumstances] and that such failure was a substantial factor in causing injury ” to the Heinric hs. We are bound by this fac tual finding

. The substantial-fac tor standard is sufficie nt to support

a finding that the injuries wer e “in conseque nce of” Duma’s criminal act, since the policy lang uag e does not require that the criminal act be the sole fac tor causing the injuries. As s u ch , t h e j ury ’s finding is sufficient to trig g er the criminal-a ct exclusion in Duma’s malprac tice insuranc e policy

. III. DISCOVERY ISS UE Finally , to t h e ex tent that it makes any differ ence at this point, we reje ct the Heinric hs’ arg ument that the district court should have allowed more time for discov er y . I n November and Dec ember 2009, the Heinric hs filed a motion for extension of time to complete discovery and a motion to continue the discovery deadline, which the court g rante d. The Heinric hs serve d discovery

on MPC on Dec ember 28, 2009. On J anuar y 6, 2010, MPC moved for summary judgme nt. Duma

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Medic al Protective Company v. Duma, e t al.

fi l ed a cross-motion for summary judgme nt on J anuar y 25, 2010. On J anuar

y 27 , 2 0 1 0 , t h e Heinric hs filed a motion for an extension of time to respond to MPC’s motion. They arg ued that the information they reque sted from MPC would “be b en ef i ci al and nece ssary in responding to Plaintiffs[ ’] motion for summary judgme nt,” and so asked for a tw en t y -d ay continuance , until Fe bruar y 15, 2010, “to per

mit discove ry to be had.” MPC claims that the Heinric hs rec eived their reque sted discovery the following day , on J anuar y 28, 2010; the Heinric hs do not contest this fac t. The He inrichs filed no re sponse to MPC’s mot ion for summary judgme nt. The dist rict court held a motion hear ing on May 24, 2010. At the hea ring , the cour

t asked counsel for

the Heinr ichs whethe r the He inrichs i ntended to have “an active role” i n the s ummary judgme nt p ro ce ed i n gs. Counsel responde d that they would defe r to counsel for Duma “and then make that assessment as the arg ument proce eds.” Eventually , they conclude d they had nothing they wanted to add, afte r the judge asked both at the end of Duma’s arg ument and at the close of the hear ing. I n g ranting MPC’s motion for summary judgme nt on J une 18, 2010, the district court found that, beca use the Heinric hs’ motion for an extension of time was filed six months ear lier and beca use they had filed nothing in the interim, “this Court assumes th at C o u n s el for the [Heinrichs] have decide d not to file a separ ate response to [MP C’s] motion for summary judgme nt” and so denied the motion as moot. The dist rict court acte d within its discretion in doing so. Discover y conclude d on J anuar

y 28, 2010. The Heinric hs had ample time afte r that point to respond to MPC’s motion for summary judgme nt if they so chose; t h ey ch ose not to. The district court extended the opportunity to the

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Medic al Protective Company v. Duma, e t al.
Heinric hs ag ain at the motion hear ing in May to respond to MPC’s motion; ag ain, they chose not to. Their J anuar

y 27 motion asked only for additional time to rec eive discovery alre ady reque sted; there is no mention of planning to reque st additional discovery

. I f the Heinric hs wer e to obtain any documentation to support their arg uments, they would have rec eived it on J anuar y 28, and so could have arg ued it at the motion hear ing. The district court could rea sonably conclude that the Heinric hs

wer e not planning t o file a response , and there fore did not abuse its discretion in deny ing their motion for an extension of time. IV. CONCLUSION We affir m the g rant of summar

y judgme nt to MP C.

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Medic al Protective Company v. Duma, e t al. ROGERS, Circuit J udg e, dissenting. I n Healthwise of Kentucky , Ltd., v. Anglin , 956 S.W .2d 213 (Ky

. 1997), the Kentucky Supreme Court require d a criminal adjudication in order for an illega lintox ication exclusion to apply in a case involving a driving -while-intoxicated crime. I n Employe rs Ins. of W ausau v. Martinez , 54 S.W .3d 142 (Ky

. 2001), the Kentucky Supreme Court later applied

a policy ’s criminal-a ct exclusion notwithstanding the absenc e of a criminal adjudication, wher e the insured admitt ed the criminal ac t
. I n a case involving neither an il leg al i ntox ication crime nor an admission, there are two possible way s to interpre t the curr en t s t at e of Kentucky law: either (a) Healthwise states the g ener al rule that an adjudicatio n i s required, and Martinez provides an exception in the case of an admission; or (b) Martinez states the g ener al rule that an adjudication is not require d, but Healthwise provides an exception i n t he case of policy exclusions that require a criminal status of leg al intox ication. The majority rea ds Kentucky law as (a) , but the maj o ri ty ’s analy sis in this reg ard is not nece ssary to its conclusion, as the m ajority g oes on to hold that there

was an eff

ective admi s s i o n i n t h i s ca se. I t is nece ssary for me to decide betwee n (a) and (b), howeve r, beca

use in my view there h as not been an eff ective admission of the crime of wanton endang erme nt here , as explained in part I I below. A fai r re ad i n g o f t he later of the two rele vant Kentucky Supreme Court case s moreove r shows that (b) is cor rec t: Martinez provides the g ener al rule and Healthwise a narr ow exception. A rema nd for a fac t-finding as to whether Duma committed wanton enda

ng erme nt is therefor e re quired.

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Medic al Protective Company v. Duma, e t al.

I

. I t is unlikely that the Suprem e Court of Kentucky would interpre t the words in Duma’s insurance policy to require some sort of criminal adjudication befor e the exclusion could apply

. The plain meaning of the words does not require a criminal adjudication, and such a require ment could

ea s ily have been articula ted in the contra ct. Moreove r, rea ding the words to impose a pri o radjudication req u i re m en t would lead to the unlikely result that the insurance company would be responsible for behavior clea rly intended to be excluded, such as euthana sia or inserting smugg led drug s in a “mule,” mere ly beca use the insured happene d for one rea son o r an o t h er n o t to be prosec uted or c onvicted. The words of the contra ct do not bear such a r esult. The only possible basis for anticipating such a contra ct interpre tation is a Kentucky Supreme Court case that has subsequently been limit ed so as to prec lude its applicability in the prese nt case . I t is not likely that the Supreme Court of Kentucky would extend its re asoning from the context of

a “leg al intox ication” exclusion in Healthwise , 956 S.W .2d at 215-16, to one involving a criminalact exclusion. Severa l fac tors support this conclusion. First, t h e Healthwise court disposed of a criminal act e x clusion that was also re lied upon by the insuranc e compa

ny on an entirely differ ent g round, one not relied upon in the prese nt case . See id. at 216-17. Second, extending the rea soning used by the Healthwise court in the context of “leg al intox ication” exclu s i o n s t o criminal act exclusions would lead to a far more sw ee p ing modification of t he parties’ obvi ous intent than t he “leg al intox ication” a

naly sis of the Healthwise court.

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Medic al Protective Company v. Duma, e t al. Third, and most compelling ly , the Supreme Court of Kentucky has more rec ently held, in the fac tu al l y cl o s er context of a policy exclusion for “willful violation of a penal statute,” that the provisions of the insurance policy did not require that the insured have been convicted of the offe nse. Martinez , 54 S

. W

. 3 d at 143. The case involved a claim for civil damag es arising from ceme tery mismanag ement and misconduct; the insured admitted that various crimes wer e committed, but arg ued that under Healthwise the exclusion did not apply beca use there was no criminal conviction. Id. The Supreme Court of Kentuc ky rea soned: We ag ree with Ap p el l ant that the Court of Appea ls incorre ctly interpre ted and misapplied Healthwise, supra, and that it is inappropria te to find cover ag e in a policy t h at i s meant to cover profe ssional err ors or mistakes, when the claims made arise from delibera te and sy stematic wrong ful acts. The crimi n al co n v iction which the Court of Appea ls would require is not expressed by the terms of t h e policy

. We require d an adjudication of the alcohol intox ication “status” in Healthwise, supra , beca use, while the use of alcohol alone did not tr ig g er the exclusion, intox ication did. Be cause intox ication was not define d expressly in the penal code, it require d a court d et er m ination. I n this case , no question exis ts as t o whether L CC violated a pen al statute; such violations were admitted. Id. at 145. I t is true that there is no unequivoca l admission of a criminal violation in this case , and that Ma r t i n ez co u l d possibly be distinguished in this reg ard. But the reje ction in Martinez of the Healthwise rationale is forc eful. I f fac ed with the prese nt ca s e i t i s l i kely the Kentucky Supreme Court would conclude , as in Martinez , that in the case of “deliber ate and sy stematic wrong ful acts,” requiring a cr iminal conviction “is not ex presse d by the terms of the policy .” Id.

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Medic al Protective Company v. Duma, e t al.

I I

. This leave s the question of how the insurance company can show a criminal violation in the absenc e of either a c riminal adjudication or a n admission of criminal conduc t. There is no rea son not to apply in this case the normal fac t-finding proce sses of the fede ral court. Summary judgme nt is w arr anted only if there is no g enuine issue of materia l f act. On the rec ord befor e us it c annot be said that there is no g enuine of materia l fac t as to whether Duma’s actions wer e wanton. The district court relied on the state court finding s of neg lige nce and rec k l es s n es s t h at wer e nece ssary for a deter mination of liability and an awa rd of punitive damag es, as well as Duma’s admissions that he drank a lmost a fifth of vodka knowing that he would have to deliver a baby later tha t day

. The state court det e r

mi n a ti o n o f r e c k le s s n e s s is n o t s u f ficient beca

use Kentucky ’s substantive criminal law draws a d i s t i n ct ion betwee n rec kless conduct and wanton conduct. “A person acts

rec klessly with respe ct to a result or to a circ umstance
. . . when he fails to perc eive a substantial and unjustifiable risk th at t h e re s u l t will occur or that the circ umstance exis ts.” Ky

. Rev. Stat. § 501.020(4). “A person acts wantonly with respe ct to a result or to a circ umstance
. . . when he is

awa re of and consciously disreg ards a substantial and unjustifiable risk that the result will occur or that the circ umstance exis ts.” Ky

. Rev. Stat. § 501.020(3). Wanton conduct has a highe r threshold of culpability at t ached to it under Kentucky law, and conseque ntly require s a showing of actua l

awa rene ss of risk on the par

t of the individual, not merely the pre sence of that risk. Moreove r, the lang uag e in the definition of wanton conce rning voluntary intox ication does not lead to a differ ent result. The definition of wanton provides: “A person who cre ates such a risk

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Medic al Protective Company v. Duma, e t al.
but is unawa

re there of solely by rea son of voluntary intox ication also acts wantonly with respe ct there to.” Ky

. Rev. Stat. § 501.020(3). The statutory provision does not make voluntary intox ication wanton; it keeps an action otherwise wanton from losing its wanton nature just beca use the actor is intox icated. A wanton endang erme nt—say , play ing Russian roulett e—does not lose its wanton nature if the play er is voluntarily drunk. But someone whose actions are rec kless but not wanton if he is sober does not by the terms of this statutory provision become wanton beca use he is voluntarily intox icated. I t is acco rd i n gl y a mistake to rea d the final sentenc e of Ky

. Rev. Stat. § 501.020(3)’ s “wa ntonly ” definition as supplanting the intent element of the wanton endang erme nt crime by repla cing the defe ndant’s awa rene ss of the risk with the defe ndant’s knowledg e of excessive alcohol consumption. Such a rea ding would e li mina te the intent element of wanton endang erme nt and cre ate

a new and differ ent crime: endang erme nt while v o lu ntarily intox icated. The lang uag e of the criminal statute does not per

mit such a rea ding I t is true t h at Du m a ad m i tted in his deposition that he drank near ly a fifth of vodka and proce ed ed t o deliver a baby

. I t is also not contested that these actions wer e reckless, and we may

acc ept the state court’s deter mination that the rec klessness cause d the injury to the child. But all of t h i s does not nece ssarily prove the more culpable st ate of wantonness. Whether such an actio n i s

wa n t o n i n addition to being rec kless is something as to which rea sonable minds could dif fe r. Duma’s actions in this case are not in dispute, but the cr i minality of the crime of wanton endang erme nt is predic ated not on the act, but the mindset behind it. Duma induced Michelle

- 16 -Nos. 10-3866, 10-3867

Medic al Protective Company v. Duma, e t al.
Heinric h and then drank a larg e quantity of alc ohol, knowing f

ull well that later that day he would have to deliver her baby

. Bo th the act of drinking under these circumstance s and the act of g oing ahea d with the delivery could be interpre ted as being “aw are of and consciously disreg ard[ing] a substantial and unjustifiable risk.” S ee Ky

. R ev . Stat. § 501.020(3). The act might also be considere d a failure “to perc eive a substantial and unjustifiable risk

. . . [t hat] constitutes a g ross deviation from the standard of car e that a rea sonable person would observe ,” which is the definition of recklessness. Ky . Rev. Stat. § 501.020(4). This is not a situation where Duma s tumbled into a delivery room wit h s l u rr ed speec h and obvious signs of drunkenne ss. His behavior was ordinary enoug h that no one stopped him from delivering Cameron Heinric h; only later was a blood alcohol test administered beca

use of the noticed smell. As for Duma’s drinking i n the first place , his testimony sug g ests that he did not expect the alcohol to af fec t him dele teriously by the time of the delivery

. The line betwee n rec kless medical p ra cti ce and wanton endang erme nt in these circ umstances is close enoug h that rea sonable fac t finders could differ

. This narr ow basis prec ludes summary judgme nt for the insurer. On the rec ord befor e us, there is not enoug h to take from a fac tfinding judge or jury

the fa ctual dete rmination of whethe r Duma’ s actions wer e wa nton. I I I

. I would vaca

te the g rant of summary judgme nt to MPC and rema nd for further proce eding s.

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