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Martinez v. Employers Insurance of Wausau10/8/1999
equired a legal adjudication of intoxica-tion before the exclusion could be applied.
We agree with the Court of Appeals . . . .
* * * While mere illegal use of drugs triggers the application of the exclusion, mere use of alcohol does not. *
* * The exclusion only applies if one is under the influence of alcohol, which is a state or a status and not an act. By the terms of the exclusion, the status of being under the influence of alcohol is attained when one is legally intoxicated as defined by Kentucky law.
Healthwise argues that a jury should be allowed to determine whether Anglin was legally intoxicated no matter what statute is used to define "legal intoxication." We reject this argument. The standard of proof is significantly different between civil and criminal proceedings. Moreover, the stakes are significantly different in the two proceedings. Further, even if the jury were to be instructed on the higher standard on the question of legal intoxication, Anglin still would not have attained the status of being legally intoxicated because no criminal penalty would attach to the adjudication. Id. at 217-218.
Based upon the holding in Healthwise, we conclude that Appellants' claims for intentional infliction of emotional distress are covered by the Cemetery Professional Liability Insurance Endorsement of the insurance policy providing coverage from September 1, 1983, through September 1, 1987. LCC and its employees are presumed to be innocent of any and all crimes until their guilt is proven beyond a reasonable doubt in a criminal trial. The fact that they were charged in an indictment with various crimes is of no consequence. Ky. R. Crim. Proc. (RCr) 9.56(1). We therefore reverse that portion of the summary judgment dismissing these claims.
Appellants further argue that there are no exclusions to Subsection I(2) of the Coverage provision of the Cemetery Professional Liability Insurance Endorsement, supra, which relates to property damage to deceased bodies, etc. We agree. The Appellants, however, attempt to include their bodily injury claims within the purview of Subsection I(2) by arguing that the nature of the wrong in this case is a hybrid and, consequently, Wausau should have specifically included an exclusion applicable to a hybrid cause of action. The Appellants cite Restatement (Second) of Torts § 868 (1979) to support this proposition.
Comment (a) to that section, entitled Interference with Dead Bodies, states that:
One who is entitled to the Disposition of the body of a deceased person has a cause of action in tort against one who intentionally, recklessly or negligently mistreats or improperly deals with the body, or prevents its proper burial or cremation. The technical basis of the cause of action is the interference with the exclusive right of control of the body, which frequently has been called by the courts a "property" or a "quasi-property" right. This does not, however, fit very well into the category of property, since the body ordinarily cannot be sold or transferred, has no utility and can be used only for the one purpose of interment or cremation. In practice the technical right has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress. * * * There is no need to show physical consequences of the mental distress.
While Kentucky law is clear in defining the cause of action for recovering damages for mental anguish for interference with the grave of a deceased person and the body therein, see, e.g., R.B. Tyler Company v. Kinser, Ky., 346 S.W.2d 306
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