                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 06a0078p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                   X
                              Plaintiff-Appellee, -
 CONTINENTAL INSURANCE CO.,
                                                    -
                                                    -
                                                    -
                                                        No. 04-6450
          v.
                                                    ,
                                                     >
 KAREN ADAMS, ANDREW SLENTZ, ESTATE OF JOHN         -
                                                    -
                          Defendants-Appellants. -
 S. KECK,

                                                    -
                                                   N
                     Appeal from the United States District Court
                  for the Western District of Kentucky at Louisville.
                No. 01-00222—Charles R. Simpson III, District Judge.
                                          Argued: October 25, 2005
                                   Decided and Filed: January 20, 2006*
                 Before: SILER and CLAY, Circuit Judges; CARR, District Judge.**
                                             _________________
                                                   COUNSEL
ARGUED: John D. Cox, LYNCH, COX, GILMAN & MAHAN, Louisville, Kentucky, for
Appellants. Griffin Terry Sumner, FROST BROWN TODD, Louisville, Kentucky, for Appellee.
ON BRIEF: John D. Cox, LYNCH, COX, GILMAN & MAHAN, Louisville, Kentucky, for
Appellants. Griffin Terry Sumner, FROST BROWN TODD, Louisville, Kentucky, for Appellee.
        SILER, J., delivered the opinion of the court, in which CARR, D. J., joined. CLAY, J. (pp.
4-6), delivered a separate concurring opinion.
                                             _________________
                                                 OPINION
                                             _________________
      SILER, Circuit Judge. Defendants Karen Adams, Andrew Slentz and the Estate of John S.
Keck appeal the grant of summary judgment to Plaintiff Continental Insurance Co., declaring that

        *
          This decision was originally issued as an “unpublished decision” filed on January 20, 2006. On February 22,
2006, the court designated the opinion as one recommended for full-text publication.
        **
          The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by
designation.


                                                         1
No. 04-6450           Continental Ins. Co. v. Adams, et al.                                    Page 2


a homeowners insurance policy held by decedent John Keck did not cover intentional injuries to
Adams and Slentz. For the reasons set forth below, we AFFIRM.
                                           I. Background
       In 1999, Keck went to the home of his ex-girlfriend, Adams, and demanded that she choose
between him and her new boyfriend, Slentz. Adams chose Slentz. Keck left and returned thirty
minutes later with a rifle. He shot at Adams several times from close range, wounding her. Keck
then chased Slentz who was also at the home, and eventually shot him. Keck then killed himself.
       Adams and Slentz sued Keck’s estate along with Continental Insurance Co., with whom
Keck had a homeowners insurance policy. Keck’s estate settled, at which point Continental
removed the action to federal district court. Continental filed for a declaratory judgement,
consolidated the two actions, and moved for summary judgment.
       At issue was whether Keck’s actions were intentional, given the following provision in
Continental’s insurance agreement with Keck:
               LOSSES WE DO NOT COVER
               1. Personal Liability and Medical Expense coverages do not apply
               to bodily injury or property damage:
               h. Intended by, or which may reasonably be expected to result from
               the intentional or criminal acts or omissions of one or more covered
               persons. This exclusion applies even if:
               (1) Such covered person lacks the mental capacity to govern his or
               her conduct[.]
               ....
               This exclusion applies regardless of whether or not such covered
               person is actually charged with or convicted of a crime.
        The district court denied summary judgment, permitting discovery as to Keck’s “intent and
his understanding of the physical nature of the consequences of his actions on November 1, 1999.”
 Dr. Patrick Hardesty, a psychologist, testified as an expert on behalf of Adams and Slentz that Keck
could not have understood the physical nature of the consequences of his actions, while
Continental’s expert reached the opposite conclusion. At the close of discovery, Continental
renewed its motion for summary judgment, which the district court granted, concluding that the
inferred intent rule applied and that Keck’s mental capacity at the time of the shooting was irrelevant
given the contract provision.
                                           II. Discussion
        This court reviews the district court’s grant of summary judgment de novo. Lautermilch v.
Findlay City Sch., 314 F.3d 271, 274 (6th Cir. 2003). Because this case is in federal court under the
diversity statute, 28 U.S.C. § 1332, Kentucky substantive law governs. See Gahafer v. Ford Motor
Co., 328 F.3d 859, 861 (6th Cir. 2003). Adams and Slentz contend that Keck’s mental capacity bore
upon his ability to form the requisite intent and, therefore, should be decided by a jury.
       Normally, intent is a question for the jury. See James Graham Brown Found., Inc. v. St. Paul
Fire and Marine Ins. Co., 814 S.W.2d 273, 276 (Ky. 1991). However, this is not a per se rule. A
No. 04-6450              Continental Ins. Co. v. Adams, et al.                                              Page 3


court may infer intent on summary judgment “where the insured’s conduct is both intentional and
of such a nature and character that harm inheres in it, that conduct affords a sufficiently clear
demonstration of intent to harm subsuming any need for a separate inquiry into capacity.”
Goldsmith v. Physicians Ins. Co. of Ohio, 890 S.W.2d 644, 646 (Ky. Ct. App. 1994) (internal
citation omitted). Thus, summary judgment can be appropriate since “such inferences must
necessarily be made by the courts because of the nature and circumstance of the fact situation.”
Goldsmith, 890 S.W.2d at 645 (emphasis added) (citing Brown Found., 814 S.W.2d at 277).
       Here, the evidence as to Keck’s actions was uncontroverted. There was no question of
material fact as to whether Keck acted intentionally when he retrieved the rifle, returned to Adams’s
home, and shot both Adams and Slentz at close range. Thus, summary judgment was proper. A
claim that the shooting was somehow unintentional “would be unsound.” See James v. Ky. Farm
Bureau Mut. Ins. Co., 2003 Ky. App. LEXIS 312, at *13-14 (Ky. Ct. App. Dec. 12, 2003).
        Adams and Slentz contend that Goldsmith is limited to evidence of the extraordinary
circumstance of child molestation, and the competing expert testimony raised a material issue of fact
as to Keck’s ability to form the requisite intent. Both of these are incorrect. First, Kentucky courts
have not so restricted Goldsmith’s scope. See, e.g., James, 2003 Ky. App. LEXIS 312, at *13
(shooting into crowd permitted inference of intent); Walker v. Econ. Preferred Ins. Co., 909 S.W.2d
343, 345 (Ky. Ct. App. 1995) (“[T]he ‘inherently injurious’ act of punching someone in the face
supports the trial judge’s inference as a matter of law that [the insured] intended to injure [the
plaintiff].”); Stone v. Ky. Farm Bureau Mut. Ins. Co., 34 S.W.3d 809, 812-13 (Ky. Ct. App.      2001)
(discussing applicability of inferred intent rule to man who pointed gun at and shot son).1
        Second, the expert testimony as to Keck’s mental capacity was irrelevant. The insurance
policy’s plain language unambiguously precludes coverage for losses incurred through an insured’s
intentional act, even if the insured “lacks the mental capacity to govern his . . . own conduct.”
Clauses limiting liability to unintentional acts irrespective of mental capacity have long been
enforceable in Kentucky. See, e.g., Colonial Life & Accident Ins. Co. v. Wagner, 380 S.W.2d 224,
226-27 (Ky. 1964) (it was irrelevant whether the assailant was insane because “under the terms of
the policy the act was intentional and therefore specifically excluded from the coverage.”).
Furthermore, “[i]t is settled Kentucky law . . . that the court must give all terms their plain meaning
and not rewrite an insurance contract to enlarge that risk.” United States Fid. & Guar. Co. v. Star
Fire Coals, Inc., 856 F.2d 31, 33 (6th Cir. 1988) (citations omitted). While this exclusionary clause
apparently was not in the insurance policies in prior cases, it is plain that the intent behind its
inclusion was to preclude any insanity defense that the insured lacked the mental capacity to commit
the act involved.
        AFFIRMED.




        1
          Adams and Slentz contend that Stone did not decide the case upon the inferred intent rule. See 34 S.W.3d at
813. However, the court of appeals, in Stone, remarked that “the inferred intent exception referred to in the Brown
Foundation case and utilized in Thompson [v. West Am. Ins. Co., 839 S.W.2d 579 (Ky. Ct. App. 1992)] has been applied
in a context other than sexual molestation.” 34 S.W.3d at 812.
No. 04-6450               Continental Ins. Co. v. Adams, et al.                                                   Page 4


                                            _____________________
                                               CONCURRENCE
                                            _____________________
        CLAY, Circuit Judge, concurring. Although I agree with the majority’s conclusion that
summary judgment was proper because the language of the contract renders Keck’s mental state
irrelevant, I write separately to express my disagreement with the majority’s treatment of
Goldsmith’s inferred-intent rule, and to address an argument that the majority ignores, namely that
the language1 of the intentional act exclusion does not apply because Keck did not intend to harm
Defendants.
                                                         I.
                                                     Background
        At issue in this case is the applicability of a so-called “intentional act” exclusion to damage
caused by the insured, John Keck. The exclusion protects the Plaintiff, Continental Insurance
Company, from liability for “bodily injury or property damage . . . [i]ntended by, or which may
reasonably be expected to result from the intentional or criminal acts or omissions” of the insured.
It further states that “[t]his exclusion applies even if . . . [s]uch covered person lacks the mental
capacity to govern his or her conduct.”
       Defendants argue that the intentional act exclusion does not apply both because: (1) Keck
did not act intentionally; and (2) Keck did not intend to cause any damage or bodily injury.
Defendants support their allegations that Keck neither acted intentionally nor intended to cause
damage with the affidavit of Dr. Hardesty. According to Dr. Hardesty, Keck was unable to
understand the physical nature of the consequences of his actions. In other words, Keck was
incapable of recognizing that shooting Defendants would harm them.
        Plaintiff argues that whether Keck intended to act or intended to cause harm is irrelevant in
determining its liability for damages caused by Keck. According to Plaintiff, the policy itself
renders Keck’s intent to act and/or cause harm irrelevant because it states, “This exclusion applies
even if . . . [s]uch covered person lacks the mental capacity to govern his or her conduct.”
Additionally, Plaintiff asserts that under Kentucky law intent to act and/or cause harm is
conclusively inferred as a matter of law where the insured’s actions are inherently injurious in
nature. Applying the inferred-intent rule, the district court found as a matter of law that Keck
intended to act as he did and granted summary judgment. Contrary to the majority’s characterization
of the district court’s opinion, the district court did not rule on the language of the contract.
                                                       II.
                                            The Inferred-Intent Rule
       The permutation of the inferred-intent rule discussed in this case derives from the Kentucky
Court of Appeals’ decision in Goldsmith v. Physicians Ins. Co. of Ohio, 890 S.W.2d 644 (Ky. Ct.
App. 1995). It refers to a court’s obligation to infer an insured’s intent to cause damage or harm,
conclusively, regardless of the insured’s actual mental state and applies primarily in sexual
molestation cases. Id. at 646-47. The Kentucky Court of Appeals reasoned that this conclusive
inference was appropriate for policy reasons. Id. at 647. Quoting an earlier decision with approval,
the Kentucky Court of Appeals wrote, “‘The emotional and psychological harm caused by sexual


         1
           The majority’s position is not entirely clear because the majority uses the term intent indiscriminately without
clarifying whether it means intent to act or intent to harm, both of which are at in issue in this case.
No. 04-6450               Continental Ins. Co. v. Adams, et al.                                               Page 5


molestation is so well recognized, and so repugnant to public policy and to our sense of decency,
that to give merit to a claim that no harm was intended to result from the act would be utterly
absurd.’” Id. at 645 (quoting Thompson v. W. Am. Ins. Co., 839 S.W.2d 579, 581 (Ky. Ct. App.
1992)).
        Despite homicide’s injurious nature, the Kentucky Court of Appeals has been unwilling to
extend Goldsmith’s conclusive and irrebuttable inference beyond sexual molestation cases to
homicides. The Kentucky Court of Appeals emphasized the limited applicability of Goldsmith’s
irrebuttable inference stating, “Lest there be no misunderstanding, we reapply the inferred-intent
rule in this specific category of insurance law involving acts of child molestation cases ‘without
displacing a subjective or objective intent standard in other categories of liability insurance cases.’”
Id. at 646. Moreover, in its most recent published decision on this issue, Stone v. Kentucky Farm
Bureau Mutual Insurance Co., 34 S.W.3d 809, 813 (Ky. Ct. App. 2000), the Kentucky Court of
Appeals expressly declined to extend Goldsmith to a homicide. It stated, “[n]otwithstanding the
possible application of the approach adopted in Goldsmith, we are guided by another case concerned
with the law in Kentucky as it relates to insurance coverage and the acts of the mentally ill.” Id.
Thereafter, the court adopted this Court’s approach in Nationwide Mutual Fire Insurance Co. v.
May, 860 F.2d 219 (6th Cir. 1989). Following Nationwide, the court in Stone held that an insured
had the right to offer psychiatric evidence that he was unable to form the requisite intent to cause
harm, and that if the insured could offer such evidence that summary judgment was improper despite
the inherently injurious nature of homicide. Id. 813-14. Thus, Stone makes clear that the inferred-
intent rule as applied in Goldsmith does not apply outside the sexual molestation context.
        Walker v. Economy Preferred Insurance, 909 S.W.2d 343 (Ky. Ct. App. 1995) does not
support a contrary position because Walker does not address whether it is proper to irrebuttably
presume intent to damage where a party offers reliable evidence that no such intent existed.2 In
Walker, the Kentucky Court of Appeals held that some intentional acts by an insured are so
inherently injurious that intent to damage will be presumed on summary judgment, despite an
insured’s testimony to the contrary. Walker, S.W. 2d at 343; see also Stone, 34 S.W.3d at 813.
In other words, an insured’s bare assertion that he or she did not intend to cause harm will not create
a genuine issue of material fact where the insured’s actions are of the kind that a reasonable person
would expect to cause harm. Walker, 909 S.W.2d at 343. Walker does not dispute the proposition
that medical evidence of an insured’s inability to form the requisite intent to damage may create a
genuine issue of material fact. In fact, no party in Walker even offered such evidence.
        In this case, the damage which occurred did not result from the insured’s act of sexual
molestation, but rather his shooting of Defendants. Thus, the insured’s conduct in this case is more
akin to the insured’s conduct in Stone, and Goldsmith’s irrebuttable presumption does not apply.
Because Defendants do offer evidence creating a genuine issue of fact as Keck’s ability to form an
intent to cause damage in the form of Dr. Hardesty’s affidavit, Kentucky law as articulated in Stone
does not permit this Court to infer Keck’s intent to cause damage from the nature of his acts. Thus,
the district court erred in applying the inferred-intent rule to conclusively infer Keck’s intent to
cause damage.




         2
          The only case that might support the majority’s position is James v. Kentucky Farm Bureau, No 2002-CA-
001738-MR, 2003 Ky. App. LEXIS 312 (Ky. Ct. App. Dec. 12, 2003). James is an unpublished opinion, however, and
cannot be cited as precedent in any court in Kentucky. See id. Therefore, this Court should not choose to apply it over
Stone, a published decision of the Kentucky Court of Appeals. 34 S.W.3d at 809.
No. 04-6450            Continental Ins. Co. v. Adams, et al.                                       Page 6


                                               III.
                                Language of the Insurance Contract
        Although the inferred-intent rule was not a proper basis for summary judgment, summary
judgment was nonetheless proper because the language of the insurance contract rendered both
Keck’s intent to act and intent to cause damage irrelevant. As the majority correctly recognizes, the
language of the contract stating that the intentional act exclusion applies “even if . . . [s]uch covered
person lacks the mental capacity to govern his or her conduct” renders Keck’s intent to act
irrelevant. See Black’s Law Dictionary 292 (7th ed. 1999) (quoting J.W. Cecil Turner, Kenny’s
Outlines of Criminal Law, 13 n.2, 24 (16th ed. 1952) (defining conduct as acts and omissions). This
clause, however, does not render Keck’s intent to cause damage irrelevant. See id. A person can
have the capacity to govern his or her own conduct, i.e. the ability to physically control his or her
own actions, and nonetheless not intend to cause damage by his or her actions.
         In addition to this language, however, the intentional act exclusion in this case also states that
Plaintiff is not responsible for “bodily injury or property damage . . . [i]ntended by, or which may
reasonably be expected to result from the intentional or criminal acts or omissions” of the insured.
Although no Kentucky court to date has interpreted similar language, courts addressing similar
language in other states have held that the phrase “which may reasonably be expected to result”
denotes an objective as opposed to subjective standard of coverage rendering the insured’s intent
to cause damage irrelevant. Allstate Ins. Co. v. McCarn, 683 N.W.2d 656 (Mich. 2004); Wallace
v. Allstate Ins. Co., No. Civ.A. CV-02-008, 2003 WL 21018821 (Me. April 18, 2003) (unpublished);
Erie Ins. Co. v. St. Stephen's Episcopal Church, 570 S.E.2d 763 (N.C. Ct. App. 2002) King v.
Galloway, 828 So.2d 49 (La. Ct. App. 2002). “That is, we are to determine whether a reasonable
person possessed of the totality of the facts possessed by [the insured] would have expected the
resulting injury.” McCarn, 683 N.W.2d at 660. This interpretation is persuasive because it
comports with the plain and ordinary meaning of “may reasonably be expected to result.” See
James Graham Brown Found., 814 S.W.2d at 279 (holding that under Kentucky law the terms of
insurance contracts are to be interpreted as according to the usage of the ordinary man). Therefore,
because a reasonable person in Keck’s position would have expected damage to result from the
shooting, the damage at issue in this case was “reasonably . . . expected to result” and is excluded
from coverage by the intentional acts exception of the policy.
                                                 IV.
                                              Conclusion
        For the foregoing reasons, I would affirm the order of the district court.
