RENDERED: DECEMBER 22, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0834-MR
HEATHER JONES, AS SISTER OF
NICOLE WAGNER AND AS
ADMINISTRATRIX AND ON
BEHALF OF THE ESTATE OF
NICOLE WAGNER; AND BETTY
THOMPSON, AS MOTHER OF
NICOLE WAGNER APPELLANTS
APPEAL FROM HARRISON CIRCUIT COURT
v. HONORABLE JAY B. DELANEY, JUDGE
ACTION NO. 20-CI-00085
ACUITY, A MUTUAL INSURANCE COMPANY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, COMBS, AND GOODWINE, JUDGES.
CETRULO, JUDGE: This appeal results from the Harrison Circuit Court order
granting summary judgment for the Appellee insurance company, finding that no
insurance coverage existed under the commercial general liability policy –
covering Donald Bottoms’s (“Bottoms”)1 plumbing business – for the fatal
shooting of Nicole Wagner (“Wagner”). After careful review, we affirm.
I. FACTS AND BACKGROUND
On the night of April 18, 2020, Bottoms, Wagner, and friends were
spending time together at Bottoms’s place of business, Three D Plumbing, which
also contained an apartment inside. In the early hours of April 19, after spending
time in the apartment (consuming food and alcohol), Bottoms drove Wagner and
her friends to Wagner’s home. According to Bottoms, Wagner refused to leave his
vehicle, and he attempted to scare her out of his vehicle with a gun he kept under a
seat. It is unclear exactly what happened, but during a struggle and/or accident the
gun discharged, and Bottoms shot Wagner, killing her.
In January 2021, Bottoms pled guilty to second-degree manslaughter.
Kentucky Revised Statute (“KRS”) 507.040. This statute states, “[a] person is
guilty of manslaughter in the second degree when he wantonly causes the death of
another person[.]” KRS 507.040(1).
KRS 501.020(3) defines “wantonly”:
A person acts wantonly with respect to a result or to a
circumstance described by a statute defining an offense
when he is aware of and consciously disregards a
1
Donald Bottoms is not a party to this appeal; in an order entered on October 18, 2022, this
Court granted his motion to be dismissed.
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substantial and unjustifiable risk that the result will occur
or that the circumstance exists. The risk must be of such
nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a
reasonable person would observe in the situation.
Subsequently, Bottoms was sentenced to 10 years of imprisonment.
In May 2020, Heather Jones (“Jones”), as Administratrix of Wagner’s
estate,2 filed a complaint in Harrison Circuit Court for the wrongful death of her
sister, Wagner. Acuity, A Mutual Insurance Company, intervened to litigate the
insurance coverage issues on behalf of the insured, Bottoms. At the time of the
shooting, Acuity insured Bottoms’s business, Three D Plumbing, with two
coverage parts: commercial general liability coverage (“CGL”) and commercial
auto coverage. Only the CGL is pertinent to this appeal.3 The CGL policy covers
“bodily injury. . . caused by an occurrence that takes place in the coverage
territory” to an insured individual “only with respect to the conduct of a business,”
but specifically excludes bodily injury “expected or intended” from the “standpoint
of the insured.” Specifically, Bottoms’s commercial general liability coverage
contract stated:
2
Betty Thompson, Wagner’s mother, is also a party to this appeal, but for simplicity we will
refer only to the lead appellant, Jones.
3
In circuit court, Jones challenged both policies, general and auto. The circuit court determined
that the shooting did not fall within the “ownership, maintenance, or use” of Bottoms’s vehicle
and therefore the shooting was not covered by the commercial auto policy. On appeal, Jones
does not contest the circuit court’s findings on the auto coverage issue.
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LIABILITY AND MEDICAL EXPENSES COVERAGES
1. Business Liability
a. We will pay those sums that the insured
becomes legally obligated to pay as damages
because of bodily injury, property damage . . . .
....
b. This insurance applies:
(1) To bodily injury or property damage only if:
(a) The bodily injury or property damage
is caused by an occurrence that takes
place in the coverage territory; . . . .
....
e. Damages because of bodily injury include
damages claimed by any person or organization
for care, loss of services or death resulting at
any time from the bodily injury. . . .
....
EXCLUSIONS
1. Applicable to Business Liability Coverage
This Insurance does not apply to:
a. Expected or Intended Injury
Bodily injury or property damage expected or
intended from the standpoint of the insured. . . .
....
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WHO IS AN INSURED
1. If you are designated in the Declarations as:
a. An individual, you and your spouse are
insureds, but only with respect to the conduct
of a business of which are the sole owner.
(CGL ACUITY POLICY X13227) (some emphasis added).
In January 2021, the parties (and Bottoms) entered a “Master
Settlement” Agreement, which included, in part, Wagner’s estate receiving the
interest in Bottoms’s commercial insurance policies. Thereafter, Jones moved for
summary judgment and declaratory judgment, which the circuit court denied.
Acuity cross-motioned for summary judgment, which the circuit court granted. In
relevant part, the circuit court found that
the [CGL] policy language unambiguously excluded
intentional or expected injuries such as the fatal shooting
from coverage, Bottoms’[s] guilty plea to wanton
manslaughter bars any re-litigation on his intent during
the shooting, and no genuine issue of material fact exists
regarding whether Bottoms was promoting his business
on the night of the shooting, warranting summary
judgment on all of Acuity’s claims.
Jones appealed. Additional facts will be added as necessary.
II. STANDARD OF REVIEW
The standard of review upon appeal of an order granting summary
judgment is “whether the trial court correctly found that there were no genuine
issues as to any material fact and that the moving party was entitled to judgment as
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a matter of law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing
Kentucky Rules of Civil Procedure (“CR”) 56.03). “[S]ummary judgment should
be granted only if it appears impossible that the nonmoving party will be able to
produce evidence at trial warranting a judgment in his favor.” Lewis v. B & R
Corp., 56 S.W.3d 432, 436 (Ky. App. 2001) (citing Steelvest v. Scansteel Serv.
Ctr., Inc., 807 S.W.2d 476, 480-82 (Ky. 1991)).
However, the Kentucky Supreme Court has held that the word
“impossible,” as set forth in the standard for summary judgment, is meant to be
“used in a practical sense, not in an absolute sense.” Id. at 436 (citation omitted).
Consequently, “the focus should be on what is of record rather than what might be
presented at trial.” Welch v. Am. Publ’g Co. of Kentucky, 3 S.W.3d 724, 730 (Ky.
1999). All facts and inferences in the record are viewed in a light most favorable
to the nonmoving party and “all doubts are to be resolved in his favor.” Steelvest,
807 S.W.2d at 480 (citation omitted). Because the circuit court granted Acuity’s
motion for summary judgment, and because interpretation and construction of an
insurance contract is a matter of law, we review the raised issues de novo, giving
no deference to the circuit court. Isaacs v. Sentinel Ins. Co. Ltd., 607 S.W.3d 678,
681 (Ky. 2020) (citations omitted).
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III. ANALYSIS
On appeal, the parties mainly argue the applicability of the “expected
and intended” exclusion; however, that is not where our analysis begins. Before
we assess the applicability of the exclusion, we must first ask: does the shooting
fall within the coverage provided by the CGL? If the shooting does fall within
CGL coverage, then we ask if any exclusions apply. If the shooting does not fall
within the terms of the GLC, then there is no need to ask if the exclusions are
applicable because coverage is already denied. Cincinnati Ins. Co. v. Motorists
Mut. Ins. Co., 306 S.W.3d 69, 78 n.35 (Ky. 2010) (citation omitted) (“[A] court
need not consider the applicability of an exclusion if there is no initial grant of
coverage under the policy.”).
“Where the terms of an insurance policy are clear and unambiguous,
the policy will be enforced as written.” Reynolds v. Travelers Indem. Co. of Am.,
233 S.W.3d 197, 201 (Ky. App. 2007) (quoting Kemper Nat. Ins. Cos. v. Heaven
Hill Distilleries, Inc., 82 S.W.3d 869, 873-74 (Ky. 2002)). When determining
whether the policy is clear and unambiguous, the insurance contract terms “should
be given their ordinary meaning as persons with the ordinary and usual
understanding would construe them.” Motorists Mut. Ins. Co. v. RSJ, Inc., 926
S.W.2d 679, 681 (Ky. App. 1996) (quoting City of Louisville v. McDonald, 819
S.W.2d 319, 320 (Ky. App. 1991)). Additionally, the courts must reasonably
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interpret insurance policies consistent with the parties’ “object and intent.” St.
Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223,
226 (Ky. 1994).
Here, Bottoms’s and Acuity’s “object and intent” was to insure
Bottoms’s plumbing business. Looking at the clear language of Bottoms’s CGL
policy, the terms covered bodily injury that occurred only “with respect to the
conduct of a business.” “It is impractical to extend insurance coverage outside the
field which it is intended to cover.” Com. Union Assur. Cos. v. Howard, 637
S.W.2d 647, 649 (Ky. 1982). Here, we agree with the circuit court that the
“contract expressly and unambiguously states that only the insured are covered
under the policy and the triggering event must be within the conduct of business.”
In response, Jones claims that the social gathering on the night of
Wagner’s death was within the conduct of Bottoms’s plumbing business.
Specifically, Jones argues that the events leading up to the shooting included the
promotion of Three D Plumbing and the “building of goodwill,” thereby falling
under the umbrella of actions taken “with respect to the conduct of a business.” To
support this contention, Jones presented an affidavit from a former Three D
Plumbing client who stated (1) that she hired Bottoms after attending a social
gathering at Bottoms’s apartment, and (2) that Bottoms frequently promoted his
plumbing business at such events.
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Additionally, Jones submitted a photograph of Bottoms, Wagner, and
three other people “poised in a luxury bathtub in [] Bottoms’[s] place of business
during the social gathering which ended with the shooting of [Wagner].” 4 In
contrast, Acuity argues that Bottoms stated in his affidavit that the events leading
up to the shooting were not business related; the plumbing client affidavit was
irrelevant because she was not present on the night in question; and the undated
photograph does not equate to conducting plumbing business. We agree with
Acuity.
“The review of summary judgment on appeal does not involve fact
finding.” Dick’s Sporting Goods, Inc. v. Webb, 413 S.W.3d 891, 895 (Ky. 2013).
However, we must review from a practical perspective: the inability to prevail at
trial must be a matter of practical impossibility, not absolute impossibility. Perkins
v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). A plaintiff responding to a
defendant’s properly supported summary judgment motion is obliged “to show that
evidence is available justifying a trial of the issue involved.” Continental Cas. Co.
4
Jones also argued a second issue of material fact – a letter from a medical professional – but
that letter is not on appeal before this Court. The order on appeal states “[t]he Court does not
reach the issue of judicial notice under [Kentucky Rules of Evidence (“KRE”)] 203 of Dr.
Armstrong’s letter, which the Court would decline to do regardless since Acuity opposed the
introduction of her letter and this would necessitate a Daubert [v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),] hearing.” We are “without
authority to review issues not raised in or decided by the trial court.” D.W. Wilburn, Inc. v. H&H
Painting, LLC, 648 S.W.3d 687, 693 (Ky. App. 2022) (citing Fischer v. Fischer, 197 S.W.3d 98,
102 (Ky. 2006)).
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v. Belknap Hardware & Mfg. Co., 281 S.W.2d 914, 916 (Ky. 1955); see also
Benningfield v. Pettit Env’t, Inc., 183 S.W.3d 567, 573 (Ky. App. 2005) (quoting
Neal v. Welker, 426 S.W.2d 476, 479 (Ky. 1968)). Unsupported suppositions are
not sufficient to save a claim from dismissal. O’Bryan v. Cave, 202 S.W.3d 585,
588 (Ky. 2006) (quoting Chesapeake & Ohio Ry. Co. v. Yates, 239 S.W.2d 953,
955 (Ky. 1951)). Here, Jones needed to present affirmative evidence in order to
defeat Acuity’s motion for summary judgment but has not done so. See Steelvest,
807 S.W.2d at 481. Jones did not present affidavits from the other people present
on the night in question stating that Bottoms was conducting plumbing business
that evening. The client affidavit was not from someone present with Wagner
and/or Bottoms on April 18 or 19; thus, it was not based upon any personal
knowledge of the events leading up to the shooting. Further, text messages
between Bottoms and Wagner on that fateful evening do not reference plumbing.
Bottoms asserted in his affidavit that none of his activities of April 18 and 19
“were related in any way to my occupation or business as plumber.” Instead, he
stated that the evening was “for purely personal, social, and nonbusiness reasons.”
Jones was unable to link Bottoms’s plumbing business to the shooting – a shooting
which occurred in Bottoms’s vehicle while it was parked in Wagner’s driveway
after a night of socializing. Further, while the photograph did technically show a
bathtub and part of a faucet, that alone does not correlate to conducting plumbing
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business. Stated another way, just because a chicken has wings does not mean it
can fly.
Generally, “[CGL] policies are designed to protect the insured against
losses to third parties arising out of the operation of the insured’s business.
Consequently, a loss must arise out of the insured’s business operations in order to
be covered under the policy issued to the insured.” PLITT, MALDONADO, ROGERS,
AND PLITT, 9A Couch on Insurance § 129:2 (3rd ed. 2022) (citations omitted).
This Court has found that commercial insurance policies, intended for strictly
business purposes, do not provide coverage for purely personal and recreational
activities. Parsley for Parsley v. Cincinnati Ins. Co., No. 2020-CA-0858-MR,
2021 WL 3698848, at *6 (Ky. App. Aug. 20, 2021). In Parsley, the defendant,
while on personal property, caused injury to the plaintiff while driving an ATV
that was presumably owned by his business. This Court determined the
commercial policy was intended to provide coverage for the business and,
therefore, purely personal and recreational activities were outside the scope of the
policy. Id.5
Although further analysis is not necessary, we note that even if the
commercial policy somehow covered the shooting, the circuit court was correct in
determining the “expected or intended” exclusion precludes coverage. “There is
5
While not binding, we find this unpublished opinion to be persuasive and current.
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no question but that a criminal conviction can be used for purposes of collateral
estoppel in a later civil action. It is required, however, that the judgment so
utilized constitute a final decision on the merits.” Roberts v. Wilcox, 805 S.W.2d
152, 153 (Ky. App. 1991) (citations omitted). A guilty plea is a final decision on
the merits; Kentucky courts do not distinguish between pleas of guilty and jury
adjudications of guilty. Ray v. Stone, 952 S.W.2d 220 (Ky. App. 1997). See also
Commonwealth v. Tigue, 459 S.W.3d 372, 389 (Ky. 2015) (“Like a verdict of a
jury[,] [a plea of guilty] is conclusive.”). Here, Bottoms pled guilty to second
degree manslaughter, i.e., wanton manslaughter. “A person acts wantonly . . .
when he is aware of and consciously disregards a substantial and unjustifiable risk
that the result will occur or that the circumstance exists.” KRS 501.020(3). By
pleading guilty to “wanton” behavior – admitting he was aware of and consciously
disregarded a substantial and unjustifiable risk – he is admitting the injury was
“expected.” That guilty plea is final and cannot be undone here. Therefore,
Bottoms’s guilty plea precludes any re-litigation as to his actions being
“expected”6 and the “expected or intended” injury exclusion also applies.
6
The parties argue the applicability of three cases, but we do not find them necessary or
necessarily dispositive because these cases present a more complex conversation as to “intent”
and “intentional acts”: Maxum Indemnity Company v. Broken Spoke Bar & Grill, LLC, 420 F.
Supp. 3d 617 (W.D. Ky. 2019), dealt with a wanton murder conviction when a gun went off as
the defendant was “pistol whipping” the victim; Parsley v. Kentucky Farm Bureau Mutual
Insurance Company, 32 S.W.3d 103 (Ky. App. 2000), dealt with charges that resulted from the
defendant beating, kidnapping, and throwing a victim off a bridge; and Gossage v. Roberts, 904
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IV. CONCLUSION
Viewing the record in a light most favorable to Jones, we AFFIRM
the Harrison Circuit Court’s order granting Acuity’s motion for summary judgment
and denying Jones’s motion for summary judgment. Here, there were no issues as
to any material fact and Acuity was entitled to judgment as a matter of law.
Because Bottoms’s actions on the night in question were not covered under the
terms of the Acuity commercial policy, and the “expected or intended” exclusion
would have been applicable if they were, Jones could not prevail under any
circumstances.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEE:
Alfred J. Welsh Kenneth A. Calderone
Louisville, Kentucky Akron, Ohio
David R. Vandeventer
Lexington, Kentucky
S.W.2d 246, 250 (Ky. App. 1995), dealt with a defendant who was “convicted of a crime
involving intentional conduct[.]”
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