dissenting.
After concluding that the exclusion at issue in this case does not require a criminal conviction before it becomes applicable, the majority opinion rather perfunctorily states, “the circuit court properly deter*146mined that Louisville Crematory and Cemeteries, Inc. intentionally acted in a manner that resulted in injury.” In my view, this statement has no relation to whether the exclusion applies to the facts of this case. I conclude that the exclusion does not apply, and therefore, I respectfully dissent.
The exclusion states:
This insurance does not apply ... to bodily injury caused by a willful violation of a penal statute or ordinance committed by or with the knowledge of an insured or of a manager employed by the named insured.
(Emphasis added).
The above exclusion does not turn on whether an insured intentionally caused injury. Rather, the exclusion only applies if a violation of a penal statute occurs during the applicable coverage period and that violation was willfully committed by a director, officer, or other person covered by the policy. The trial court made no such finding.
In support of its conclusion that a penal statute had been willfully violated, the trial court stated:
Viewing the underlying stipulated facts, LCC, at some point in time, through its officers and directors, did accept and adopt the practices of overburying the cemetery, reusing grave sites, removing remains and memorials from graves, digging in occupied graves, and selling already-occupied graves. Accepting and adopting such practices would clearly be a willful violation of a penal statute by or with the knowledge of the officers and directors of LCC.
Memorandum and Order, 89-CI-05256 c/w 90-CI-01480 (Jefferson Circuit Court entered May 20, 1997) at 14 (emphasis added). This analysis misses the point.
As noted by the trial court, the applicable period of the cemetery professional liability insurance coverage is from September 1, 1983, through September 1, 1987. But the trial court merely found that a penal statute had been violated at some point in time. Further, rather than finding that a statute had been violated by a person insured under the policy at issue, the trial court’s findings state that “there is a dispute as to whether the officers and directors specifically named in this proceeding were aware of and accepted such practices.” Id. at 7. The trial court’s findings of fact do not support the conclusion that an insured violated a penal statute during the applicable coverage period; the findings of fact do not support the trial court’s conclusion of law that the exclusion at issue applies in this case. The summary judgment in this case should be reversed.
More importantly, I believe that the trial court erred as matter of law in concluding that the exclusion in question applies to the underlying plaintiffs’ claims for intentional infliction of emotional distress. The exclusion states that “this insurance does not apply to ... bodily injury .... ” (Emphasis added). As defined in the policy itself, bodily injury means “sickness or disease sustained by any person which occurs during the policy period including death at any time resulting therefrom.” Under Kentucky law, the tort of infliction of intentional distress does not depend on the occurrence of bodily injury to be actionable.
In Craft v. Rice, Ky„ 671 S.W.2d 247, 249 (1984), we held:
The basis of the cause of action is intentional interference with the plaintiffs rights causing emotional distress, with or without personal injury in the traditional sense. If there has been physical injury with pain to the body or mind, it *147is incidental to the emotional distress rather than essential to the cause of action as is the case in an action for personal injury. The plaintiff may have a cause of action for emotional distress from the intentional and unlawful interference with her rights, regardless of whether she suffers any bodily injury from such interference.
Id. at 249 (emphasis added).
The exclusion in question applies only to “bodily injury.” The exclusion does not, and cannot under Kentucky law, apply to the plaintiffs’ claims for intentional infliction of emotional distress. A number of jurisdictions are in accord and hold that the term “bodily injury” in insurance contracts does not encompass claims for mental injury. See, e.g., Continental Casualty Co. v. Synalloy Corp., 667 F.Supp. 1550 (S.D.Ga.1985); Aim Insurance Co. v. Cul-casi, 229 Cal.App.3d 209, 280 Cal.Rptr 766 (1991); Weaver v. Motorists Mutual Insurance Co., 68 Ohio App.3d 547, 589 N.E.2d 101 (1990); Provident Life & Accident Insurance Co. v. Campbell, 18 Tenn. App. 452, 79 S.W.2d 292 (1934). In holding the opposite today, I believe Wausau has won a battle that may lose future wars.
I would affirm the Court of Appeals, though on different grounds.
LAMBERT, C.J., and STUMBO, J., join this dissenting opinion.