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Martinez v. Employers Insurance of Wausau10/8/1999
TO BE PUBLISHED
OPINION OF JULY 16, 1999 WITHDRAWN
Commonwealth Of Kentucky Court Of Appeals
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Appellants appeal from a summary judgment holding that certain Employers Insurance of Wassau (Wassau) liability insurance policies do not afford coverage for claims arising from the deliberate overburial of bodies in cemeteries operated by Louisville Crematory and Cemeteries Co., Inc. (LCC).
In 1989, the Attorney General of Kentucky filed an action against LCC and three of its officials, Clifford Amos, Robert Copley and Charles M. Alexander, Jr., alleging the commission of unfair, false and deceptive practices in violation of Ky. Rev. Stat. (KRS) 367.170 in connection with the corporation's operation of two cemeteries in Jefferson County and with the failure to comply with KRS 367.952 which provides for the deposit of certain proceeds into a perpetual care trust fund. In addition, a sixty-one-count criminal indictment was returned against LCC, as well as Amos, Copley and Alexander, with the Attorney General serving as special prosecutor. A number of individuals also filed claims against LCC alleging misconduct in connection with the burial of relatives. These claims were consolidated with the Attorney General's claims for deceptive trade practices. In August 1991, the criminal charges were dismissed pursuant to a pre-trial diversion agreement.
In February 1990, Appellants filed a complaint against LCC in Jefferson Circuit Court alleging misconduct in connection with the intentional overburial of bodies in graves located on property held by the corporation for burial purposes. Wausau was allowed to intervene in the case in August 1991. The carrier sought a declaratory judgment to determine whether insurance policies issued to LCC from September 1, 1983, through September 1, 1989, covered any of Appellants' claims. Appellants moved for summary judgment in the declaratory judgment portion of the action; and Wausau countered with its own motion for summary judgment. In May 1997, the circuit court granted Wausau's motion for summary judgment and denied Appellants' motion. This appeal followed.
Appellants contend that the circuit court erred in granting summary judgment because a provision in the policy Wausau issued to LCC for the period from September 1, 1983, through September 1, 1987, provides coverage for their claims.
That provision within the policy's Cemetery Professional Liability Insurance Endorsement, headed Coverage, provides, in pertinent part, that:
I. The company will pay on behalf of the insured [LCC} all sums which the insured shall become legally obligated to pay as damages because of (1) Bodily injury (including mental anguish) or property damage arising out of professional error or mistake committed by or on behalf of the named insured in the conduct of cemetery obligations; (2) Property damage to deceased human bodies, the clothing or other personal effects or cremated remains thereof, or to any casket, urn, vault or like container, whether or not arising out of the use of vehicles, while any of the foregoing are in the care or custody of the named insured in connection with cemetery operations; * * *
Exclusions. This insurance does not apply:
(B) To bodily injury caused by willful violation of a penal statute or ordinance committed by or with the knowledge of an insured or of a manager [e.g., Amos and Copley] employed by the named insured.
Appellants argue that since the only exception to the bodily injury coverage is a willful violation of a penal sta
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