Opinion of the Court by Justice ABRAMSON.

Appellants Michael McKinney, M.D, Gregory Cooper, M.D. and James Winkley, M.D. (the "Physicians") are former employees of The New Lexington Clinic ("NLC") who resigned from that medical practice in early 2008 to practice at a nearby facility opened by Baptist Healthcare System, Inc. through its subsidiary Baptist Physicians Lexington, Inc. (collectively "Baptist.") Although the Physicians' employment agreements allowed for their departure on sixty days' notice and, subject to certain conditions, even their competition with their former employer, NLC brought actions against all three men for breach of fiduciary duties owed in their capacity as members of the NLC board of directors. NLC alleged that the Physicians used confidential information and recruited NLC personnel while still serving as NLC directors. Baptist was joined as a defendant on the grounds that it aided and abetted the Physicians' breaches. The trial court granted summary judgment dismissing the complaints on the ground that neither complaint1 properly invoked Kentucky Revised Statute (KRS) 271B.8-300, a statute that court considered controlling as to all actions involving breach of a Kentucky corporate director's duties. The Court of Appeals agreed that the statute controlled but found the complaints sufficient to state a cause of action under Kentucky's liberal pleading standards and, thus, remanded for further proceedings.

Contrary to the lower courts' conclusions, KRS 271B.8-300 does not abrogate common law fiduciary duty claims against directors in Kentucky but essentially codifies a standard of conduct and standard of liability for directors that is derived from business judgment rule principles. As it explicitly states, the statute applies to "any action taken as a director" and "any failure to take any action as a director." Preparing for and participating in a competing venture does not constitute the type of internal corporate governance conduct addressed in KRS 271B.8-300 and consequently the statute does not apply. Accordingly, NLC properly pled common law fiduciary duty claims on these alleged facts and this action must be remanded. As for the trial court's alternative ground for granting summary judgment, the absence of any damages flowing from the alleged breaches, there remain issues of material fact as to what damages, if any, were caused by the alleged breaches. However, the Physicians and Baptist are correct that, given the rights accorded the Physicians under their employment agreements, NLC has overstated the scope of the injuries that can fairly be said to flow from the alleged breaches of fiduciary duty.

RELEVANT FACTS

NLC is a Kentucky professional services corporation with its principal place of business in Lexington. Since at least 1997, NLC, through its staff of doctors and other medical personnel, has provided medical care to individual patients at its facility in Lexington referred to as Veteran's Park. NLC also provides medical services at facilities in several other Kentucky communities. Beginning, respectively, in 1997, 2001, and 2003, NLC employed Drs. McKinney, Cooper, and Winkley at the Veteran's Park clinic. All three physicians also served on the corporation's board of directors. Throughout calendar year 2007 all three men were directors, with Drs. McKinney and Cooper remaining on the NLC board until early February 2008.

Baptist2 is a rival health care services provider, which, at some point prior to early 2007, commenced plans to open a clinic at Brannon Crossing in Jessamine County, just across the Jessamine-Fayette County line and less than two miles away from NLC's Veteran's Park facility. NLC alleges that in March 2007, Dr. McKinney met with a Baptist recruiter and soon thereafter agreed not only to accept a position at the soon-to-be Brannon Crossing clinic, but agreed also to help recruit other NLC physicians and staff. Throughout the rest of 2007 and into early 2008, according to NLC, Dr. McKinney, still an NLC director, revealed to Baptist confidential information about NLC's organization and revealed confidential salary information about NLC employees. NLC alleges that this information, in conjunction with Dr. McKinney's own recruiting efforts, ultimately enabled Baptist to hire away several NLC employees, including other physicians.

NLC maintains that Dr. McKinney deliberately deferred resigning from the NLC board so as to retain access to the confidential NLC information he shared with Baptist, and that his February 2008 resignation from the board and from his employment was followed in short order by the defection to Baptist of other NLC physicians and their staffs and by the transfer to Baptist of many of those physicians' patients. NLC's complaint alleges that Dr. McKinney's competitive acts and wrongful use of corporate information breached the fiduciary duty he owed the corporation as a director and that the breach caused financial harm to the corporation. The complaint charges Baptist with having aided and abetted Dr. McKinney's fiduciary breach. Against all of these defendants NLC seeks compensatory and punitive damages, and against Dr. McKinney it seeks unspecified injunctive relief.

NLC's complaint against Drs. Cooper and Winkley makes similar allegations of competition by a director, misuse of corporate information, and resulting damages. Baptist is again alleged to have aided and abetted the directors' wrongful conduct. In addition to compensatory and punitive damages, this complaint seeks restitution of the salaries paid to the doctors during the period of their alleged disloyalty as well as any profits the defendants may have garnered attributable to the alleged wrongdoing.

The complaints thus allege the basic elements of a breach-of-fiduciary-duty cause of action: (1) the existence of a fiduciary duty; (2) the breach of that duty; (3) injury; and (4) causation. Nevertheless, the trial court entered summary judgment dismissing all of NLC's claims because, in its view, "the only claims Plaintiff has pursued against the doctors are common law claims no longer viable as a matter of law, having been supplanted by [Kentucky Revised Statute (KRS) 271B.8-300]."

KRS 271B.8-300, in pertinent part, provides that "any action taken as a director, or any failure to take any action as a director, shall not be the basis for monetary damages ... unless ... the breach or failure to perform constitutes willful misconduct or wanton or reckless disregard for the best interests of the corporation and its shareholders." KRS 271B.8-300(5)(b). In response to Baptist's motion for summary judgment, NLC argued that the statute does not apply in this case because the disloyal acts alleged against the physicians were not taken in each physician's capacity "as a director," but solely in his capacity as an individual. The trial court rejected that argument and ruled that because NLC had not pled the statute and later contested its applicability, it was precluded from pursuing what, in the trial court's view, is now a strictly statutory cause of action.

The Court of Appeals reversed. It agreed with the trial court that KRS 271B.8-300 applies to NLC's damages claims, but it rejected the notion that either NLC's argument against applying the statute or its not having invoked the statute in its complaints somehow constituted a forfeiture of NLC's right to proceed under the statute.3 Baptist and the Physicians argue here, as they did successfully in the trial court, that NLC somehow "disavowed" a statutory claim by contending that KRS 271B.8-300 does not apply. We agree with the Court of Appeals that the trial court erred in granting summary judgment to Baptist and the Physicians but our grounds for so concluding are entirely different.

ANALYSIS

I. The Trial Court Erred in Granting Summary Judgment as a Matter of Kentucky Corporate Law.

Under CR 56, of course, summary judgment is generally not appropriate unless, following discovery and viewing the record in the light most favorable to the party opposing the motion, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Toyota Motor Manufacturing, Inc. v. Epperson, 945 S.W.2d 413 (Ky.1996). The party opposing a properly supported summary judgment motion cannot defeat it without presenting at least some affirmative evidence showing that there is a genuine issue of material fact for trial, but the motion should be denied unless it appears that the non-movant has no realistic chance of ultimately prevailing. Welch v. American Publishing Company of Kentucky, 3 S.W.3d 724 (Ky. 1999) (discussing Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991)). As did the Court of Appeals, we review the trial court's summary judgment ruling de novo. Carter v. Smith, 366 S.W.3d 414 (Ky.2012).

A. KRS 271B.8-300 Does Not Address a Director's Breach of Fiduciary Duties as Alleged in this Case.

Kentucky courts have historically recognized that corporate directors owe fiduciary duties to the corporation and its shareholders, duties emanating from common law.4 Urban J. Alexander Co. v. Trinkle, 311 Ky. 635, 224 S.W.2d 923, 926 (1949) (a director has a "fiducial relation to the corporation and its shareholders"; he must act in the "utmost good faith and to further the corporation's interest and business" and may not acquire interests in "conflict or competition" with the corporation he serves). The duty of care and the duty of loyalty are the fundamental duties owed by a director although the evolution of corporate law nationally, particularly through decisions of the Delaware courts, has led some commentators to suggest that there are additional duties. See Julian Velasco, "How Many Fiduciary Duties are There in Corporate Law?" 83 So. CAL. L.REV. 1231 (2010) (recognizing the basic duties of care and loyalty as well as the more recently articulated duty of good faith and positing a case for two additional duties). This case requires consideration of the effect of KRS 271B.8-300, entitled "General Standards for Directors," on a claim that a corporate director has breached his fiduciary duties by misusing confidential information, seeking to hire corporate employees or otherwise acting contrary to the corporation's interest in anticipation of participation in a competing venture. As noted, both lower courts have concluded that this statute abrogates the common law and that any breach of a director's duties, including breach of the duties of "loyalty, faithfulness, honesty and fair dealing" as alleged in this case, must be pursued under the statute. We conclude otherwise, given the plain language of the statute.

KRS 271B.8-300 provides:

The cardinal rule of statutory construction is to give effect to the legislative intent, and the courts must derive that intent, if at all possible, from the language chosen by the General Assembly. Shawnee Telecom Resources, Inc. v. Brown, 354 S.W.3d 542, 551 (Ky.2011). Here, the legislature has stated a standard of conduct for a director of a corporation in the "discharge of his duties." The KRS 271B.8-300(1) requirements of good faith, acting on an informed basis and in the best interests of the corporation are principles most often associated with the business judgment rule. Aronson v. Lewis, 473 A.2d 805, 812 (Del.1984) (business judgment rule presumes that "in making a business decision the directors ... acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.") While the drafters of the Model Business Corporation Act emphasize that somewhat similar standard of conduct and director liability language in sections 8.30 and 8.31 of the Model Act is not intended to codify the business judgment rule,5 KRS 271B.8-300 has been aptly referred to as the Kentucky business judgment statute. Rutheford B. Campbell, Jr., Corporate Fiduciary Duties in Kentucky, 93 Ky. L.J. 551, 570 (2004-05) (statute offers directors the protection of the business judgment standard). Certainly it codifies both the standard of conduct applicable to a director and the circumstances in which the director can be held liable for monetary damages or subjected to injunctive relief. Significantly, subsection (5) limits a corporate director's liability but it does so only in the context of "any action taken as a director, or any failure to take any action as a director." In short, when acting in his or her directorial capacity, a director must comply with the statutory standard of conduct. If he fails to do so, injunctive relief is available and if the conduct at issue is willful misconduct or reflects wanton or reckless disregard for the corporation and its shareholders, then monetary damages may also be recovered.

The limiting language in KRS 271B.8-300(5) clearly evinces the legislature's intent to accord corporate directors protection in making decisions regarding the corporation and the conduct of its business. But just as clearly, the statute does not purport to address circumstances where a director is acting, not in his capacity as a director, but in his own individual interest with respect to a matter beyond the conduct of the corporation's business, even if that extra-corporate matter may have some impact on the corporation. If a director is acting on his own accord in anticipation of competing with the corporation which he still serves, that conduct implicates the director's common law fiduciary duties, not KRS 271B.8-300.

Our conclusion that KRS 271B.8-300 addresses a director's action and/or inaction in the internal corporate decision-making context is buttressed by the commentary6 accompanying KRS 271B.8-300:

(emphasis supplied).

The references to the "internal affairs of a corporation," courts "judging corporate business decisions" and "the ordinary director's normal risk-taking in honest decision-making" emphasize that the focus of KRS 271B.8-300 is corporate governance, not any action whatsoever that a person may take with respect to extra-corporate matters during his tenure as a director.

This interpretation is further supported by a decision of the Virginia Supreme Court, Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666 (2001), construing similar language in the Virginia corporation statute. In that case, Miller was a director of Las Palmas Tobacco, Ltd., a corporation with the exclusive right to import and distribute a brand of Spanish cigars on the east coast of the United States. A Las Palmas shareholder, Simmons, brought suit alleging a breach of Miller's fiduciary duty based on Miller's "secretly and wrongfully replac[ing] Las Palmas with a different corporation, International," also engaged in importing and marketing cigars. 544 S.E.2d at 672. In her defense, Miller claimed the benefit of the "statutory business judgment rule" which provided in relevant part that a director shall discharge his duties "in accordance with his good faith business judgment of the best interests of the corporation." Id. at 675. The Virginia statute further provided that "a director is not liable for any action taken as a director, or any failure to take any action, if he performed the duties of his office in compliance with this section." Id. at 676. In rejecting Miller's argument that the statute controlled the breach of fiduciary duty claim, the Virginia court stated:

544 S.E.2d at 577.

A similar conclusion is warranted here and, in fact, the U.S. District Court for the Eastern District of Kentucky has construed the Kentucky statute in precisely the same way. In Gundaker/Jordan American Holdings, Inc. v. Clark, 2008 WL 4550540, *3 (E.D.Ky.2008), the court stated:

By contrast to Steelvest and Aero Drapery, in Gundaker the challenged actions included soliciting the revocation of proxies to prevent a quorum at the annual meeting of the corporation and voting to remove an officer of the corporation. The federal district court easily concluded that these actions were taken "as a director" of the company and were thus controlled by KRS 271B.8-300.

Contrary to the conclusions of the trial court and the Court of Appeals, KRS 271B.8-300 simply does not speak to all actions an individual takes while serving as a corporate director but only to those which he or she takes or fails to take while acting in a directorial role, i.e., actions or inactions regarding corporate governance and the affairs of the corporation. For claims alleging breach of a director's fiduciary duties, especially the duty of loyalty, in the context of preparation for and participation in a competing enterprise, the common law principles elucidated in Aero Drapery and Steelvest continue to apply.

B. Corporate Director "Competition" Claims Are Properly Analyzed Under Common Law as Set Forth in Aero Drapery and Steelvest.

Kentucky law regarding the intersection of a corporate director's fiduciary duties and his preparation for, and participation in, a competing venture is essentially limited to two cases, Aero Drapery and Steelvest. In Aero Drapery, 507 S.W.2d at 166, Engdahl, an officer, director and shareholder of a custom drapery retailer, met with three key employees in the company's thirty-nine-person workforce to plan a competing venture. He shared confidential information with the three employees, including profit and loss statements and information regarding a confidential stock-bonus plan, and offered to loan them money so they could purchase stock in the new company. The four men located a site for the new business, purchased yellow page listings and contacted fabric suppliers with which Aero Drapery did business. All of this occurred in an eight-week period prior to Engdahl's resignation. In concluding that the trial court had erred in granting summary judgment in favor of Engdahl on Aero Drapery's breach of fiduciary duty claim, this Court noted that the then-controlling statute, KRS 271.365, provided that directors "stand in a fiduciary relation to the corporation." Even "without this statute", the Court stated, the fiduciary nature of a director's relationship to the corporation "obligated [Engdahl] not to develop interests antagonistic to Aero without full disclosure." 507 S.W.2d at 169. The Court outlined Engdahl's directorial duties and breaches as follows:

Id. (citations omitted). After resignation, the Aero Drapery Court stated, a director is free to compete using his own "personal experience, enterprise, and knowledge, but he may not use prior fiducial confidences to profit at the expense of his former employer." 507 S.W.2d at 170. Ultimately the case was remanded to the trial court where "the type or types and measures of relief' to which Aero Drapery was entitled were questions addressable in the first instance by that court. Id.

Approximately seventeen years later, this Court, in Steelvest, outlined similar duties on the part of a director and officer of a steel company who left to form a competing venture, a new company which he had planned for eleven months prior to resigning. The Court held that the officer/director, Scanlan, "owed a duty of loyalty and faithfulness to the corporation ... [which] includes a duty not to act against the employer's interest." 807 S.W.2d at 483. In concluding that summary judgment in favor of Scanlan was erroneous, the Court noted the evidence of record regarding his pre-resignation activities:

Id. at 484. As in Aero Drapery, the Steelvest Court concluded that summary judgment was inappropriate and remanded the matter to the trial court for further proceedings.

While Kentucky law is not extensive, it is nonetheless instructive regarding the duties of a corporate director who plans to compete. The conduct alleged by NLC, misuse of corporate information and recruiting of NLC personnel prior to resignation, if proven, would support a claim for breach of the Physicians' common law fiduciary duties. Thus, the trial court erred in granting summary judgment as a matter of law.

II. The Trial Court Erred in Concluding that No Damages Could Flow from the Breach of the Physicians' Fiduciary Duties.

As an alternative ground for its summary judgment, the trial court also concluded that NLC had "presented insufficient evidence to suggest that the alleged fiduciary breach was the legal cause of any damages claimed by [NLC]. [NLC] has not articulated or identified any harm to it nor benefit to the Defendants flowing from or attributable to the alleged fiduciary breach." Rejecting this alternative, the Court of Appeals noted that discovery had not been completed with respect to damages on either complaint.7 We agree with the Court of Appeals that NLC should have an opportunity to pursue its breach of fiduciary duty claims and attendant damages discovery but deem it appropriate to address further the causation issue given the factual differences in this case vis-a-vis Aero Drapery and Steelvest.

Unlike the directors in Aero Drapery and Steelvest, the Physicians had employment agreements with NLC that specifically contemplated the potential of each physician, at some point in the future, competing with NLC. Dr. McKinney's contract was terminable on sixty days' notice by either party and contained a "Restrictive Competition and Confidentiality Agreement" as an addendum. Pursuant to the non-compete provision in the addendum, Dr. McKinney was prohibited from practicing medicine in Fayette County, Kentucky for a period of 360 days following termination of his employment with NLC. Dr. McKinney gave the requisite sixty days' notice and began practicing medicine at Baptist's Brannon Crossing facility, which indisputably is not in Fayette County. Drs. Winkley and Cooper also had employment agreements that were terminable by either party on sixty days' notice but the "Agreement Not to Compete" contained in Article 6 of their agreements, while for the same 360-day period, extended to locations within thirty miles of the physician's primary practice location. This thirty-mile radius encompasses the Brannon Crossing facility operated by Baptist. According to the Physicians and Baptist, Drs. Winkley and Cooper exercised their right to "opt out" of their non-compete clauses by paying, collectively, over $500,000 in liquidated damages, as provided in Section 6.3 of their agreements. The "opt out" amount was specifically identified as "liquidated damages" in the employment agreements, which further provide that NLC and the respective physician "agree that said liquidated damages are reasonable and representative of the actual amount Employer would incur upon Employee's violation" of the non-compete provision.

Thus, unlike the directors in Aero Drapery and Steelvest, the Physicians had negotiated contracts which allowed them to leave NLC and even compete, consistent with the contracts' terms. This important distinction undoubtedly has bearing on the causation of damages issue which the trial court considered as an alternative ground for summary judgment and which must be addressed on remand. Simply put, if NLC establishes a breach of fiduciary duty by any of the Physicians (or aiding and abetting by Baptist) the recoverable damages are those caused by the actual breach of those duties, not some portion of the revenue stream generated by the Physicians through their medical practices after their departure. The Physicians' post-resignation practice at the Baptist facility was and is lawful, Dr. McKinney being beyond the geographic scope of his covenant not to compete and Drs. Winkley and Cooper having paid the agreed-upon liquidated damages so that they could continue to practice in the area. While the parties' contractual agreements as to future competition did not obviate the Physicians' duties as directors, they, most assuredly, have bearing on the measure of damages.

Additionally, it is apparent that NLC is not dealing in a product or commodity, like the custom draperies in Aero Drapery or industrial steel in Steelvest, but is instead a professional service corporation that provides medical care to patients through highly skilled professionals. Patients of those professionals can and do choose from whom they will receive their medical care. The patients that have been the subject of much dispute in this case did not belong to NLC and they do not belong to the Physicians and Baptist, a fact that should not be lost on any of the parties on remand.

While quantifying the damages that a corporation incurs when a director improperly uses confidential information or hires corporate employees for a competing venture is not an easy task, courts in other jurisdictions have tackled the task. See, e.g., B & L Corporation v. Thomas and Thorngren, Inc., 162 S.W.3d 189 (Tenn. App.2004); Monotronics Corp. v. Baylor, 107 Ill.App.3d 14, 62 Ill.Dec. 760, 436 N.E.2d 1062 (1982). When fiduciary duty breaches are proven, Kentucky trial courts and juries are equally capable of making damage causation determinations on a case-by-case basis.

CONCLUSION

The business judgment statute applicable to directors, KRS 271B-8-300, encompasses those situations where the director of a Kentucky corporation takes action or fails to take action in his capacity as a director. Preparing to compete and subsequently competing with the corporation are activities beyond the scope of the statute and such actions by a director continue to give rise to common law breach of fiduciary duty claims. The trial court and Court of Appeals erred in concluding otherwise, although the appellate court was correct in remanding this matter for further proceedings. On remand, if NLC establishes breaches of the Physicians' fiduciary duties, damages are recoverable for those injuries caused by the actual fiduciary breaches themselves. The parties have already, through the Physicians' employment agreements, accounted for the prospect of future competition in a different medical practice. In the case of Dr. McKinney, the parties limited the geographic scope of the non-compete restriction and, with respect to Drs. Winkley and Cooper, they negotiated liquidated damages that represented the fair value of any future competition with NLC. Accordingly, we affirm the remand to the trial court with direction that all further proceedings be consistent with this Opinion.

All sitting. All concur.