*

This decision was originally issued as an “unpublished decision” on March 11, 2013. The court

has now designated the opinion as one recommended for full-text publication.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0069p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

NORTH AMERICAN SPECIALTY INSURANCE

COMPANY,

Plaintiff-Appellee,

v.

JOHN PAUL PUCEK, DAVID FOGG, BRETT

SETZER, and ROBERT L. EDWARDS,

Defendants-Appellants.

X

-

-

-

-

>

,

-

-

-

-

N

No. 12-5734

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:08-cv-00486—Joseph M. Hood, District Judge.

Decided and Filed: March 11, 2013*

Before: KEITH, MARTIN, and COLE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Scott A. Crosbie, William C. Hurt, Jr., Aaron D. Reedy, HURT, CROSBIE

& MAY, PLLC, Lexington, Kentucky, for Appellants. M. Jane Brannon, JACKSON

KELLY, PLLC, Lexington, Kentucky, for Appellee.

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. This case involves a dispute over an

equine mortality insurance policy. John Paul Pucek, David Fogg, Brett Setzer, and

Robert L. Edwards, the former owners of a horse named Off Duty, appeal a district court

order granting summary judgment to North American Specialty Insurance, Co. For the

reasons set forth below, we affirm the district court’s judgment.

1
No. 12-5734 N. Am. Specialty Ins. v. Pucek, et al. Page 2

I. BACKGROUND

On October 19, 2008, Off Duty, a five-year-old thoroughbred, fractured both of

his sesamoid bones in his left front limb while training at Churchill Downs. A track

trainer examined Off Duty and found he had a collapsed fetlock joint and thus had

destroyed his suspensory apparatus. Such an injury is incurable and there are two

options in response to it: (1) euthanize the horse, or (2) perform a surgical procedure

called fetlock arthrodesis. The trainer at Churchill Downs told the Owners the horse

could be euthanized at the track, but the Owners instead took Off Duty to another

veterinarian for a second opinion. At approximately 10 a.m. on the day of the injury the

Owners’ insurance agent alerted Kirk Horse Insurance, LLC, the Managing Underwriter

for North American Specialty, of Off Duty’s injury.

The Owners took Off Duty to Rood & Riddle Veterinarian Hospital in Lexington,

Kentucky, where Lawrence Bramlage, D.V.M., examined Off Duty on October 19. That

afternoon Dr. Bramlage told Ron Kirk and Ryan Quinn of Kirk Horse Insurance about

Off Duty’s condition. Dr. Bramlage told Kirk and Quinn that, while a horse’s

suspensory apparatus cannot be reconstructed, he believed Off Duty was a good

candidate for fetlock arthrodesis and that there was a fifty-percent chance that Off Duty

could be saved as a breeding stallion. Fetlock arthrodesis is a procedure where the

horse’s joint is fused, allowing the horse to stand on its leg. Without surgery, the horse

will likely die from a condition called “laminitis,” caused by the horse placing too much

weight on the leg opposite the injured limb. Laminitis is extremely painful and horses

with laminitis are euthanized. Dr. Bramlage had helped pioneer the fetlock arthrodesis

surgery, which is considered a salvage surgery as, in the Appellant’s words, “the horse

can be kept alive and his economic value salvaged.”

While Dr. Bramlage believed Off Duty was a good candidate for the fetlock

surgery, he refused to provide an official opinion to North American Specialty on the

case because the Owners had hired him to inspect Off Duty. Furthermore, the Owners

had told Dr. Bramlage they wanted to euthanize the horse and did not want to proceed

with the surgery. On October 20, Dr. Bramlage sent a letter to one of the Owners, John
No. 12-5734 N. Am. Specialty Ins. v. Pucek, et al. Page 3

Pucek, with a copy to Quinn, saying that Off Duty’s fetlock injury was grounds for

humane destruction under the American Association of Equine Practitioners’ guidelines.

The letter also stated that the fetlock surgery “is a long and complicated surgical

procedure and the [American Association of Equine Practitioners] Insurance Committee

has held that it is beyond what should be required of the insured, unless all parties agree

to proceed with the attempt to save the horse.” Bramlage’s letter says that North

American Specialty requested he consider surgery, but he would not agree unless the

Owners were also in agreement. Bramlage recommended North American Specialty

seek another veterinary opinion, and he referred Quinn and Kirk to Dr. Michael Spirito

or Dr. Robert Hunt for a second opinion.

Quinn contacted Dr. Spirito on October 21. Dr. Spirito ultimately recused

himself from the proceedings because he was friends with Kirk and also with David

Fogg, one of the Owners, who had contacted Spirito asking that he provide an opinion

in support of euthanasia. However, Dr. Spirito did provide the Owners with an

unofficial opinion, saying the injury was incurable and met the American Association

of Equine Practitioners guidelines for euthanasia. Spirito also agreed that the fetlock

arthrodesis surgery, if successful, would save Off Duty’s life.

After Dr. Spirito’s recusal, Kirk called the second veterinarian Dr. Bramlage

recommended, Dr. Hunt, on October 22. Also on October 22, Kirk received a letter from

the Owners’ counsel stating that they had decided to euthanize Off Duty within twentyfour hours. Because Dr. Hunt was not available that evening, Dr. Hunt’s partner, Dr.

Richard Holder, personally examined Off Duty at the Rood & Riddle facility on Hunt’s

behalf and provided Dr. Hunt with a summary of Off Duty’s condition. Dr. Holder

described Off Duty as being calm, with normal heart and breathing rates. Dr. Holder said

Off Duty was eating well, did not appear stressed, and was “passing manure normally.”

The next day, October 23, the Owners’ counsel contacted Kirk at 1:30 p.m.

saying it was their intention to euthanize Off Duty. Pucek had visited Off Duty and felt

the horse was suffering and had video-taped Off Duty in his stall. At 2:35 p.m., the

Owners received Dr. Hunt’s opinion which stated that while Off Duty’s injury was life-
No. 12-5734 N. Am. Specialty Ins. v. Pucek, et al. Page 4

threatening if not addressed, he believed Off Duty was a good candidate for fetlock

arthrodesis surgery. Dr. Hunt recommended the fetlock surgery; however, he agreed that

if there were any complications from the surgery he would recommend humane

destruction. Given Pucek’s opinion of Off Duty’s condition, Dr. Hunt asked another of

his partners, Dr. Smith, to examine Off Duty at 2:50 p.m. on October 23, to make sure

Off Duty’s condition had not changed from the day before. Dr. Smith found Off Duty’s

heart and breathing rates to be within normal range. This is consistent with Rood &

Riddle’s medical records as well, which record Off Duty as “[a]mbulating well around

the stall” on October 23.

Later on the afternoon of October 23, North American Specialty offered to pay

for the fetlock surgery and post-operative care of Off Duty until he had recovered,

without diminishing the policy’s coverage. The Owners rejected the offer and

euthanized Off Duty the next morning on October 24, 2008. 

On November 6, 2008 the Owners submitted a payment claim under their

insurance policy. North American Specialty denied the claim on November 24, 2008.

North American Specialty brought a declaratory judgment action and following

discovery, moved for summary judgment. The district court entered summary judgment

against the Owners on June 15, 2012 and the Owners now appeal.

II. ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo. State Farm Fire & Cas. Co.

v. Zurich Ins. Co., 111 F.3d 42, 44 (6th Cir. 1997). The Court must consider the

evidence in the light most favorable to the nonmoving party to determine whether a

genuine issue of material fact exists. A grant of summary judgment is proper if “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

genuine dispute of material fact exists if the evidence shows “that a reasonable jury
No. 12-5734 N. Am. Specialty Ins. v. Pucek, et al. Page 5

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 249 (1986).

B. Interpretation of the Equine Mortality Policy

This case is a dispute over the terms of an insurance policy. This is a diversity

case and we apply the choice of law provisions of the forum state, Kentucky. Pedicini

v. Life Ins. Co. of Alabama, 682 F.3d 522, 526 (6th Cir. 2012), reh’g denied (July 11,

2012). In Kentucky, the legal effect of an insurance policy is a matter of law for the

court. State Farm Mut. Auto. Ins. Co. v. Slusher, 325 S.W.3d 318, 322 (Ky. 2010)

(citing Morganfield Nat’l Bank v. Damien Elder & Sons, 836 S.W.2d 893, 895 (Ky.

1992)). “[A]mbiguous language must be liberally construed so as to resolve all doubts

in favor of the insured,” and where language is not ambiguous the court should apply the

ordinary meaning of the insurer’s words. Bituminous Cas. Corp. v. Kenway Contracting,

Inc., 240 S.W.3d 633, 638 (Ky. 2007); Slusher, 325 S.W.3d at 322.

The parties spend much of their briefs arguing about whether the Owners

violated Section IV.1.u. of the policy, which outlines the Owners’ obligations if the

horse is injured, sick, or diseased. The relevant section requires the Owners to:

(1) Give immediate notice to [North American Specialty’s] Managing

Underwriter as shown on the Declarations Page;

(2) Employ at [the Owners’] expense a veterinarian to treat the horse;

(3) Secure proper care, and, if necessary, allow the horse to be removed

at [North American Specialty’s] direction for treatment at [the

Owners’] expense.

Failure or refusal to follow these steps gives North American Specialty the right to deny

coverage. The Owners argue that fetlock arthrodesis surgery is beyond what “proper

care” requires, while North American Specialty argues that euthanasia does not

constitute treatment under the policy. The district court found it unnecessary to delve

into the ambiguities of the language, holding that the Owners had violated an exclusion

in the mortality policy. We agree.

North American Specialty’s policy provides an exclusion from coverage if the

Owners intentionally destroy the horse. However an exception to the exclusion allows
No. 12-5734 N. Am. Specialty Ins. v. Pucek, et al. Page 6

coverage for humane destruction of a horse. Id. The policy defines humane destruction

as,

the intentional slaughter of a horse:

a. when the horse suffers an injury or is afflicted with an excessively

painful disease and a veterinarian appointed by [North American

Specialty’s] Managing Underwriter certifies in writing that the horse

is incurable and in constant pain, or presents a hazard to itself or its

handlers; or

b. when the horse suffers an injury and [the owners’] appointed

veterinarian certifies in writing that the horse is incurable and in

extreme pain, and that immediate destruction is imperative for these

reasons without waiting for the appointment of a veterinarian by

[North American Specialty’s] Managing Underwriter.

The Owners’ euthanizing of Off Duty does not meet the humane destruction standards.

For the humane destruction exception to the exclusion to apply under either

clause a or b, a veterinarian must have provided two things: (1) a certified written

opinion; and (2) an opinion determining that the horse was “incurable and in constant

pain,” or “incurable and in extreme pain.” The only certified written opinion we have

here is from Dr. Hunt, and it does not meet the second requirement. Dr. Hunt’s partners

did not find Off Duty to be in constant pain and Dr. Hunt’s opinion determined that Off

Duty was “reasonably comfortable” with normal “vital parameters.”

The Owners’ challenge Dr. Hunt’s opinion because he did not personally

examine Off Duty and they further argue that Pucek recorded a video of Off Duty on

October 23, 2008 showing that the horse was in extreme pain. The Owners’ arguments

are not persuasive. While Dr. Hunt did not personally examine Off Duty, he had two

qualified veterinarians check the horse for signs of distress. Furthermore, while not

certified opinions capable of meeting the policy requirements for humane destruction,

neither Dr. Bramlage, nor the medical records from Rood & Riddle Veterinarian

Hospital, describe the horse as being in constant or extreme pain. Finally, the Owners’

video is ultimately not relevant to the policy guidelines, which required a veterinarian

to certify in writing that the horse was incurable and in constant pain. 

Regardless of whether the American Association of Equine Practitioners’

guidelines allow for euthanasia, the parties had agreed to the language of the contract.

The Owners do not meet the exception to the Intentional Destruction exclusion. The
No. 12-5734 N. Am. Specialty Ins. v. Pucek, et al. Page 7

Owners euthanized Off Duty, despite North American Specialty’s offer to take over

treatment of the horse and in violation of their Equine Mortality Policy.

III. CONCLUSION

For all of the reasons set forth above, we affirm the judgment of the district court.