State Farm Mutual Automobile Insurance v. Wilson

ROSEN, District Judge,

concurring.

I fully concur with the Court’s ruling in this case. I wish only to add that at least two alternative constructions of Kentucky case law, in addition to the one adopted by the majority, would lead to precisely the same result. Under our diversity jurisdiction, where our role is narrowly limited to *499predicting what a state court would do if presented with the facts before us, I am reluctant to foreclose the possibility that the Kentucky courts might choose to follow a course different from the one selected by the majority.

As noted by the majority, the Kentucky Supreme Court’s decision in Healthwise of Kentucky, Ltd. v. Anglin, 956 S.W.2d 213 (Ky.1997), seems to require a criminal adjudication of guilt in order to satisfy an insurance policy provision which incorporates a standard of criminal law. I believe there are at least three ways, however, in which the ruling in Healthwise may be deemed not to control here. First, as recognized by the majority, the Kentucky Supreme Court’s subsequent decision in Employers Insurance of Wausau v. Martinez, 54 S.W.3d 142 (Ky.2001), adopts an “admission of guilt” exception to Health-wise ’s requirement of a criminal adjudication. The majority finds, and I wholly agree, that there are ample admissions in the record before us to establish that Christopher Wilson’s use of his grandfather’s pickup truck was “unauthorized,” and hence violative of Ky.Rev.Stat. § 514.100(1), and that these admissions, under Martinez, obviate the need for a formal adjudication of Christopher’s guilt under the Kentucky Penal Code.

Even without the exception recognized in Martinez, however, I believe the result here would be no different. First, I question whether Healthwise dictates that we look solely to the Kentucky Penal Code to construe the “lawful possession” policy language at issue here. The policy language addressed in Healthwise expressly referenced “legal intoxication as defined by Kentucky law,” and the policy in Martinez likewise required the “willful violation of a penal statute” to defeat coverage. Here, by contrast, the State Farm policy speaks of “lawful possession” of a vehicle. As demonstrated through the various dictionary definitions offered by the parties, “lawful” does not equate merely to “not criminal,” and one can act “unlawfully” without committing a criminal offense. Cf. Kimberly & European Diamonds, Inc. v. Burbank, 518 F.Supp. 599, 601-02 (W.D.Ky.1981) (discussing the tort of conversion under Kentucky law), aff'd, 684 F.2d 363 (6th Cir.1982); Restatement (Second) of Torts § 217 (setting forth the elements of a tort claim of trespass to chattels). Given this factual distinction between this case and Healthwise and Martinez, I do not believe that the Kentucky courts necessarily would require an adjudication or admission of criminal wrongdoing in order to conclude that Christopher Wilson was not in “lawful possession” of his grandfather’s truck.

Next, I note that Healthwise looked to the Kentucky Penal Code, and then required an adjudication of guilt under this body of law, only after concluding that the “legal intoxication” policy language at issue in that case was ambiguous, and could be construed by reference to a variety of competing statutory standards. The same could be said of the “lawful possession” policy language at issue here — there are, as the District Court noted, a number of Kentucky statutes that arguably bear upon the question of “lawful possession” — but with one important difference. Notably, and in contrast to the circumstances presented in Healthwise, the Wilsons have failed to identify any standard of “lawful possession” under Kentucky law, whether within the Penal Code or elsewhere, that might plausibly encompass Christopher Wilson’s use of his grandfather’s vehicle. Thus, even under the most liberal rules of construction favoring the Wilsons, it simply is not possible to interpret the State Farm policy in a way that supports coverage.

*500Given these alternative paths to the same result, we should be hesitant, as a federal court sitting in diversity, to adopt a single, definitive construction of the decisions in Healthwise and Martinez, or to endorse any particular means of harmonizing these rulings. Rather, I believe that we should leave it to the state courts to further elucidate the law in this area. With this caveat, I join in the majority’s decision.