Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:08-cv-00486--Joseph M. Hood, District Judge.
The opinion of the court was delivered by: Boyce F. Martin, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
Before: KEITH, MARTIN, and COLE, Circuit Judges.
This case involves a dispute over an equine mortality insurance policy. John Paul Pucek, David Fogg, Brett Setzer, and Robert L. Edwards, the former owners of a horse named Off Duty, appeal a district court order granting summary judgment to North American Specialty Insurance, Co. For the reasons set forth below, we affirm the district court's judgment.
On October 19, 2008, Off Duty, a five-year-old thoroughbred, fractured both of his sesamoid bones in his left front limb while training at Churchill Downs. A track trainer examined Off Duty and found he had a collapsed fetlock joint and thus had destroyed his suspensory apparatus. Such an injury is incurable and there are two options in response to it: (1) euthanize the horse, or (2) perform a surgical procedure called fetlock arthrodesis. The trainer at Churchill Downs told the Owners the horse could be euthanized at the track, but the Owners instead took Off Duty to another veterinarian for a second opinion. At approximately 10 a.m. on the day of the injury the Owners' insurance agent alerted Kirk Horse Insurance, LLC, the Managing Underwriter for North American Specialty, of Off Duty's injury.
The Owners took Off Duty to Rood & Riddle Veterinarian Hospital in Lexington, Kentucky, where Lawrence Bramlage, D.V.M., examined Off Duty on October 19. That afternoon Dr. Bramlage told Ron Kirk and Ryan Quinn of Kirk Horse Insurance about Off Duty's condition. Dr. Bramlage told Kirk and Quinn that, while a horse's suspensory apparatus cannot be reconstructed, he believed Off Duty was a good candidate for fetlock arthrodesis and that there was a fifty-percent chance that Off Duty could be saved as a breeding stallion. Fetlock arthrodesis is a procedure where the horse's joint is fused, allowing the horse to stand on its leg. Without surgery, the horse will likely die from a condition called "laminitis," caused by the horse placing too much weight on the leg opposite the injured limb. Laminitis is extremely painful and horses with laminitis are euthanized. Dr. Bramlage had helped pioneer the fetlock arthrodesis surgery, which is considered a salvage surgery as, in the Appellant's words, "the horse can be kept alive and his economic value salvaged."
While Dr. Bramlage believed Off Duty was a good candidate for the fetlock surgery, he refused to provide an official opinion to North American Specialty on the case because the Owners had hired him to inspect Off Duty. Furthermore, the Owners had told Dr. Bramlage they wanted to euthanize the horse and did not want to proceed with the surgery. On October 20, Dr. Bramlage sent a letter to one of the Owners, John Pucek, with a copy to Quinn, saying that Off Duty's fetlock injury was grounds for humane destruction under the American Association of Equine Practitioners' guidelines. The letter also stated that the fetlock surgery "is a long and complicated surgical procedure and the [American Association of Equine Practitioners] Insurance Committee has held that it is beyond what should be required of the insured, unless all parties agree to proceed with the attempt to save the horse." Bramlage's letter says that North American Specialty requested he consider surgery, but he would not agree unless the Owners were also in agreement. Bramlage recommended North American Specialty seek another veterinary opinion, and he referred Quinn and Kirk to Dr. Michael Spirito or Dr. Robert Hunt for a second opinion.
Quinn contacted Dr. Spirito on October 21. Dr. Spirito ultimately recused himself from the proceedings because he was friends with Kirk and also with David Fogg, one of the Owners, who had contacted Spirito asking that he provide an opinion in support of euthanasia. However, Dr. Spirito did provide the Owners with an unofficial opinion, saying the injury was incurable and met the American Association of Equine Practitioners guidelines for euthanasia. Spirito also agreed that the fetlock arthrodesis surgery, if successful, would save Off Duty's life.
After Dr. Spirito's recusal, Kirk called the second veterinarian Dr. Bramlage recommended, Dr. Hunt, on October 22. Also on October 22, Kirk received a letter from the Owners' counsel stating that they had decided to euthanize Off Duty within twenty- four hours. Because Dr. Hunt was not available that evening, Dr. Hunt's partner, Dr. Richard Holder, personally examined Off Duty at the Rood & Riddle facility on Hunt's behalf and provided Dr. Hunt with a summary of Off Duty's condition. Dr. Holder described Off Duty as being calm, with normal heart and breathing rates. Dr. Holder said Off Duty was eating well, did not appear stressed, and was "passing manure normally."
The next day, October 23, the Owners' counsel contacted Kirk at 1:30 p.m. saying it was their intention to euthanize Off Duty. Pucek had visited Off Duty and felt the horse was suffering and had video-taped Off Duty in his stall. At 2:35 p.m., the Owners received Dr. Hunt's opinion which stated that while Off Duty's injury was life- threatening if not addressed, he believed Off Duty was a good candidate for fetlock arthrodesis surgery. Dr. Hunt recommended the fetlock surgery; however, he agreed that if there were any complications from the surgery he would recommend humane destruction. Given Pucek's opinion of Off Duty's condition, Dr. Hunt asked another of his partners, Dr. Smith, to examine Off Duty at 2:50 p.m. on October 23, to make sure Off Duty's condition had not changed from the day before. Dr. Smith found Off Duty's heart and breathing rates to be within normal range. This is consistent with Rood & Riddle's medical records as well, which record Off Duty as "[a]mbulating well around the stall" on October 23.
Later on the afternoon of October 23, North American Specialty offered to pay for the fetlock surgery and post-operative care of Off Duty until he had recovered, without diminishing the policy's coverage. The Owners rejected the offer ...