dissenting.
David Anglin was injured in an automobile accident which occurred while he was drag racing another vehicle at 70 miles per hour in a 35 miles per hour zone on the wrong side of the road. A subsequent blood alcohol test revealed his B.A. content to be 0.21 percent, more than twice the legal limit. The health insurance policy issued to Anglin by the Appellant, Healthwise of Kentucky, Ltd., contained exclusions for (a) losses suffered as a result of committing or attempting to commit a crime, and (b) treatment for injuries sustained as a result of being under the influence of alcohol. Remarkably, the majority of this Court has concluded that, as a matter of law, Anglin was neither committing a crime nor under the influence of alcohol at the time his injuries were sustained.
I. The “Committing a Crime” Exclusion
In Stone v. City of Paducah, 120 Ky. 322, 86 S.W. 531 (1905), this Court defined the word “crime” for purposes of the Thirteenth Amendment of the United States Constitution and § 25 of the Constitution of Kentucky as follows:
A crime is an act or omission which is prohibited by law, as injurious to the public, and punished by the state in a proceeding in its own name or in the name of the people.... The term ‘criminal,’ when used in reference to judicial proceedings, is opposed to ‘civil,’ and, in its most comprehensive meaning may be regarded as in-*220eluding all eases for the violation of the penal law.... A crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding it or commanding it.... In our opinion, when the thirteenth amendment and our own Constitution to the same effect were adopted, it was understood that the word “crime” was to include misdemeanors and all offenses in violation of the penal laws.
Id., 86 S.W. at 534 (citations omitted). See also McIntyre v. Commonwealth, 154 Ky. 149, 156 S.W. 1058, 1059 (1913). Under this definition, Anglin was committing the crimes of speeding, KRS 189.390, drag racing, KRS 189.505, and operating a motor vehicle while under the influence of alcohol (DUI), KRS 189A.010(1), at the time his injuries were sustained.
Instead of relying on the common law definition of “crime,” the majority opinion adopts the Kentucky Penal Code definition contained in KRS 500.080:
As used in the Kentucky Penal Code, unless the context otherwise requires:
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(2) “Crime” means a misdemeanor or a felony;
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(10) “Misdemeanor” means an offense, other than a traffic infraction, for which a sentence to a term of imprisonment of not more than twelve (12) months can be imposed. (Emphasis added.)
The majority concludes that since the definition of a misdemeanor excludes traffic infractions, the offenses of speeding, drag racing and DUI are not “crimes.” Of course, the prefatory language of the statute specifically limits its applicability to the penal code. The crimes committed by Anglin are compiled not in the penal code, but in KRS chapters 189 and 189A. Regardless, KRS 532.020(3) provides as follows:
Any offense defined outside this code for which a law outside this code provides a sentence to a definite term of imprisonment with a maximum of less than ninety (90) days shall be deemed a Class B misdemeanor.
The penalties for a first offense DUI conviction, whether under the 1984 version of KRS 189A.010(1) (coincidentally referred to as the “slammer bill”), or under the present version of that statute, include imprisonment in the county jail for not less than forty-eight hours nor more than thirty days. KRS 189A.010(2)(a) [now (4)(a) ]. A fortiori, DUI is a misdemeanor.
Since KRS 500.080 applies only to penal code offenses and there is no reason to assume that the policy exclusion was intended to apply only to crimes defined in the penal code, it is more appropriate to apply the common law definition of “crime” set forth in Stone v. City of Paducah, supra, to this exclusion.
II. The “Under the Influence” Exclusion
Since this exclusion uses the language “under the influence of alcohol,” which appears to have been lifted directly from KRS 189A.0KX1), it seems likely that the parenthetical language “legal intoxication as defined by Kentucky law” was intended to refer to the statutory provision that a blood alcohol reading of 0.10 or more creates a presumption that the person being tested was under the influence of alcohol. KRS 189.520(3).
The majority simply finesses the “under the influence” language of the exclusion and focuses instead on the parenthetical language, finally concluding that the appropriate “legal” definition of “intoxication” is encompassed within the criminal offense of alcohol intoxication, KRS 222.202(1), viz:
A person is guilty of alcohol intoxication when he appears in a public place manifestly under the influence of alcohol to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.
KRS 222.202.
However, instead of merely transforming this criminal offense into a definition, the majority concludes that since the definition is, in fact, a criminal offense, the exclusion cannot apply until and unless Anglin is actually convicted of that offense. Of course, Anglin could not even have been arrested for the offense of alcohol intoxication, since the *221offense did not occur in the presence of the investigating officer. KRS 431.005. By the time the officer arrived on the scene of this accident, Anglin was no longer endangering himself or others or unreasonably annoying persons in his vicinity. He was unconscious. The illogic of requiring a criminal conviction as a prerequisite to the application of an exclusion in a health insurance policy was best addressed in Lampen v. Albert Trostel & Sons Co. Employee Welfare Plan, 832 F.Supp. 1287 (E.D.Wis.1993), which involved the interpretation of a “committing a crime” exclusion in a policy issued pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001, et seq.
The terms of the plan do not require a conviction. There are a myriad of reasons why a person may not be charged with a crime which have no bearing on his or her guilt or innocence—someone may rob a store and die from wounds from a battle with police after incurring medical expenses but before being charged with any crime. This could not mean that she has not robbed the store or committed the crime, requiring a plan such as the one covering Mr. Lampen to cover her expenses. This would defy logic and common sense.
Id. at 1292.
Application of these types of exclusions in a health insurance policy should not depend upon whether the acts were committed in the presence of a police officer, or even whether a police officer chose to charge the policyholder with a criminal offense. The officer is not an agent of the insurer and cannot bind the insurer by his actions or inactions.
Since KRS 222.005(6) was not in effect at the time of Anglin’s accident, the only statutory definition of “intoxication” was that set forth in KRS 501.010(2): “A disturbance of mental or physical capacities resulting from the introduction of substances into the body.” The majority rejects this definition because it includes intoxication from substances other than alcohol. In fact, so does the exclusion in the policy, viz: “Treatment for injuries sustained as a result of being under the influence of alcohol (legal intoxication as defined by Kentucky law) or the illegal use of drugs.”
The statutory definition in KRS 501.010(2) closely mirrors the common law definition enunciated in Tate v. Barton, Ky., 272 S.W.2d 333 (1954). “A person is intoxicated when he is under the influence of an intoxicant to such extent that his physical or mental faculties are affected and his judgment impaired.” Id. at 334, citing 29 Am.Jur., Insurance, § 1010, p. 763. Since this is a civil case, this definition appears to be more appropriate than either of the definitions contained in the penal statutes.
III. The Summary Judgment
Both parties moved for summary judgment. Healthwise documented its motion with proof that Anglin was speeding, drag racing, and under the influence of alcohol at the time of his automobile accident. This documentation included statements of eyewitnesses and the affidavit of the officer who investigated the accident and obtained the statements. Anglin did not controvert this evidence, but rather argued that the policy exclusions were ambiguous. If either party to this action was entitled to summary judgment, it was Healthwise. Hubble v. Johnson, Ky., 841 S.W.2d 169 (1992). Nevertheless, under the strict summary judgment requirements set forth in Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), I am unable to conclude that it would be impossible for Anglin to prevail at trial. Id. at 482. However, Healthwise was at least entitled to have a jury decide the issue.
The majority holds that Healthwise waived its right to a jury trial by asserting in its motion for summary judgment that “there are no genuine issues of fact.” In fact, no motion for summary judgment may be granted absent proof that “there is no genuine issue as to any material fact.” CR 56.03. If including such an allegation in a motion for summary judgment constitutes a waiver of the right to trial by jury in the event the motion is overruled, motion practice in the courts of this Commonwealth will be forever altered as a result of this case, i.e., you must prove it, but you allege it at your peril. It would require only one small additional step *222to conclude that a motion for summary judgment constitutes a binding judicial admission that “there is no genuine issue of any material fact” which would warrant a trial by jury if the motion is overruled.
I would reverse this case and remand it to the Franklin Circuit Court for a trial by jury as to whether Anglin’s injuries were incurred while he was “committing a crime” or “under the influence of alcohol.”
STEPHENS, C.J., joins this dissent.