ROBERT E. WIER, District Judge.
Atlantic Specialty Insurance Company (ASIC) seeks summary judgment in this declaratory judgment action. DE #22 (Motion). Bill Stanley opposed.
In this suit, ASIC "seeks a ruling that it is not obligated to defend Smith or to indemnify him from liability arising from the shooting death of [Brandon] Stanley." DE #22, at 5. The relevant facts are straightforward. On March 1, 2016, Brandon
A court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A reviewing court must construe the evidence and draw all reasonable inferences from the underlying facts in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Lindsay v. Yates, 578 F.3d 407, 414 (6th Cir. 2009). Additionally, the court may not "weigh the evidence and determine the truth of the matter" at the summary judgment stage. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).
The burden of establishing the absence of a genuine dispute of material fact initially rests with the moving party. Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986) (requiring the moving party to set forth "the basis for its motion, and identify[] those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate an absence of a genuine issue of material fact"); Lindsay, 578 F.3d at 414 ("The party moving for summary judgment bears the initial burden of showing that there is no material issue in dispute."). If the moving party meets its burden, the burden then shifts to the nonmoving party to produce "specific facts" showing a "genuine issue" for trial. Celotex Corp., 106. S. Ct. at 2253; Bass v. Robinson, 167 F.3d 1041, 1044 (6th Cir. 1999). However, "Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 106 S. Ct. at 2552; see also id. at 2557 (Brennan, J., dissenting) ("If the burden of persuasion at trial would be on the non-moving party, the party moving for summary judgment may satisfy Rule 56's burden of production in either of two ways. First, the moving party may submit affirmative evidence that negates an essential element of the nonmoving party's claim. Second, the moving party may demonstrate to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." (emphasis in original)).
A fact is "material" if the underlying substantive law identifies the fact as critical. Anderson, 106 S. Ct. at 2510. Thus, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. A "genuine" issue exists if "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 2511; Matsushita Elec., 106 S. Ct. at 1356 ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'") (citation omitted). Such evidence must generally be suitable for admission at trial. Alexander v. CareSource, 576 F.3d 551, 557-59 (6th Cir. 2009).
The parties agree that three "coverage forms" define the insurance parameters at issue: (1) the Law Enforcement Liability Coverage Form ("LEL form"), see DE #5-1, (2) the Public Officials Errors and Omissions Coverage Form ("E&O form"), see DE #5-3, and (3) the Commercial General Liability Coverage Form ("GL form"), see DE #5-2.
"[T]he proper interpretation of insurance contracts generally is a matter of law to be decided by a court[.]" Thiele v. Ky. Growers Ins. Co., 522 S.W.3d 198, 199 (Ky. 2017).
However, "when interpreting insurance policies, the contract should be liberally construed and any doubts as to coverage should be resolved in favor of the insured." MGA Ins. Co., Inc. v. Glass, 131 S.W.3d 775, 778 (Ky. Ct. App. 2004) (internal quotation marks and alteration removed). "Where an exclusion is susceptible to two reasonable interpretations, the interpretation favorable to the insured is adopted." St. Paul Fire & Marine Ins. Co. v. Powell-Walton-Milward, Inc., 870 S.W.2d 223, 226 (Ky. 1994). But, a "liberal interpretation is not synonymous with a strained one." K.M.R. v. Foremost Ins. Grp., 171 S.W.3d 751, 753 (Ky. Ct. App. 2005). "The rule of strict construction against an insurance company," thus, "does not mean that every doubt must be resolved against it and does not interfere with the rule that the policy must receive a reasonable interpretation consistent with the parties' object and intent or narrowly expressed in the plain meaning and/or language of the contract." St. Paul Fire, 870 S.W.2d at 226. Indeed—importantly—the parties' intent "is to be deduced, if possible, from the language of the contract alone." Nolan, 10 S.W.3d at 131-32; K.M.R., 171 S.W.3d at 753 (same); Ky. Unemployment Ins. Comm'n v. Wilson, 528 S.W.3d 336, 340 (Ky. 2017) (same principle).
Exclusions "do not grant coverage; rather, they subtract from it." Kemper Nat'l Ins. Cos., 82 S.W.3d at 872; see also id. at 871 (describing the "function" of "exclusions" to be "to restrict and shape the coverage otherwise afforded" in the policy). "Because coverage exclusions are contrary to the fundamental protective purpose of insurance, they are strictly construed against the insurer and will not be extended beyond their clear and unequivocal meaning. But that strict construction should not overcome plain, clear language resulting in a strained or forced construction." Id. at 873-74 (internal quotation marks removed). "[A] clearly worded exclusion is not treated as ambiguous," and "[t]ortured constructions of clauses in an attempt to create an aura of ambiguity are unavailing to create coverage." Holzknecht v. Ky. Farm Bureau Mut. Ins. Co., 320 S.W.3d 115, 121-22 (Ky. Ct. App. 2010); see also, e.g., Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372-73 (6th Cir. 1995); Am. Nat'l Bank & Trust Co. v. Hartford Accident & Indem. Co., 442 F.2d 995, 999-1000 (6th Cir. 1971); Owners Ins. Co. v. Frontier Housing, Inc., 291 F.Supp.3d 810, 815 (E.D. Ky. 2017).
The LEL form plainly excludes (in a section titled "
The Court holds that the criminal act exclusion, in this situation and on this record, is clear and unambiguous. See Kemper Nat'l Ins. Cos., 82 S.W.3d at 873-74. Accordingly, the Court "give[s] effect to what the parties expressly agreed upon," Nolan, 10 S.W.3d at 131, and deduces the parties' intent "from the language of the contract alone." Id. at 131-32. The Court, thus, enforces the contract "as written." Kemper Nat'l Ins. Cos., 82 S.W.3d at 873-74 (holding the exclusion at issue was "unambiguous" because it "clearly defines the coverage").
Stanley's claims in 16-264 unquestionably fall under the umbrella of the criminal act exclusion—i.e., they arise directly or indirectly out of, or in some way relate to, a criminal act committed by Smith (reckless homicide). See DE ##5-4 (Amended 16-264 Complaint); 22-3, at 2. "Reckless homicide is a Class D felony." KRS 507.050(2). Further, the criminal judgment against Smith, entered in April 2017, established the criminal act before the filing of the operative 16-264 Complaint, on May 30, 2017, and before Smith answered, in December 2017. This means that Section III.4's "however" clause is satisfied—i.e., a judgment established the criminal act, and ASIC had no prospective duty to defend.
In the briefing, Stanley argues, at length, that the criminal act exclusion is ambiguous or otherwise unenforceable. See DE #40, at 10-18. The Court rejects each theory. First, Stanley complains that, via the criminal act exclusion, "the Insurer giveth on one hand and taketh away on the other." Id. at 10-11. Indeed, that is the point of exclusions—to remove coverage. See Kemper Nat'l Ins. Cos., 82 S.W.3d at 872. A broad coverage grant, tempered and shaped by a specific exclusion, does not, perforce, an ambiguity make. See id. at 873-76; DE #5-1, at 1 (including a "to which this insurance applies" caveat in Section 1.A.1); id. at 2 (
The Court, further, sees no need to engage Stanley's hypothetical quartet. See id. at 11-13. The facts of this case govern the analysis; the question is not whether ambiguity could theoretically exist on other facts. See, e.g., Auto Club Pro.-Cas. Ins. Co. v. B.T. ex rel. Thomas, 596 F. App'x 409, 413 (6th Cir. 2015) (contemplating that a criminal act exclusion may be "ambiguous when applied to particular acts that were not quintessentially criminal," such as "drag racing" and "possessing and igniting fireworks without a license"); True v. Raines, 99 S.W.3d 439, 443 (Ky. 2003) (rebuffing parties' "attempts to muddy the waters and create some question of interpretation" so as to manufacture ambiguity (internal alteration removed)); Meridian Leasing, Inc. v. Associated Aviation Underwriters, Inc., 409 F.3d 342, 349 (6th Cir. 2005).
Further, the Court rejects Stanley's effort to find uncertainty in the meaning of "criminal act" itself. See id. at 13-15. The lines to be drawn hinge on the case to be decided. Whatever the outer contours of that phrase may be, it unquestionably applies to situations, such as this one, where a jury previously convicted the (assumed) insured of a crime—indeed, a homicide-related felony, see also KRS 500.080(2) (defining "crime" to mean, inter alia, "a felony"). See, e.g., Employers Ins. of Wausau v. Martinez, 54 S.W.3d 142, 144-45 (Ky. 2001).
Next, Stanley spends two-and-a-half pages of his brief discussing a 32-year-old North Carolina Court of Appeals case. See DE #40, at 15-17 (analyzing Graham v. James F. Jackson Assocs., Inc., 352 S.E.2d 878 (N.C. Ct. App. 1986)). Graham (apart from, of course, being nonbinding) is readily distinguishable from this case, as Stanley himself acknowledges. See DE #40, at 17 (conceding that "the language of the policy in Graham is not exactly as the Atlantic Specialty policy language herein" (no italics in original)). In Graham, the policy "expressly provide[d] coverage for negligently inflicted bodily injury resulting in death, but . . . exclude[d] from coverage `criminal acts,' which, in the case of involuntary manslaughter, could include negligently inflicted bodily injury resulting in death. Thus, the policy [wa]s reasonably susceptible to more than one construction and must be construed in favor of providing coverage." 352 S.E.2d at 431.
This is wholly distinct from the LEL form. As an initial matter, reckless homicide requires a different mens rea (recklessness, as the name suggests) from gross or ordinary negligence. See, e.g., Stephens v. Commonwealth, 356 S.W.2d 586, 587 (Ky. 1962) (describing a sliding scale, in the unintentional homicide context, from greater to lesser culpability—starting with recklessness, moving to gross negligence, and ending with ordinary negligence); Bentley v. Commonwealth, 354 S.W.2d 495, 496 (Ky. 1962) ("`Gross negligence' has been recognized as less culpable than `reckless and wanton' conduct."). Further, even if recklessness is equivalent to gross negligence, as some courts hold, see, e.g., Solow v. Heard McElroy & Vestal, LLP, 7 So.3d 1269, 1277 (La. Ct. App. 2009), Stanley cites no LEL form provision "expressly" providing coverage for "negligently inflicted bodily injury" or a "negligent act" (or, for that matter, "recklessly inflicted bodily injury" or a "reckless act").
Finally, "[u]nder the doctrine of reasonable expectations," which Stanley invokes, see DE #40, at 18-19, "an insured is entitled to all the coverage he may reasonably expect to be provided according to the terms of the policy." Ky Ass'n of Counties All Lines Fund Trust v. McClendon, 157 S.W.3d 626, 634 (Ky. 2005) (internal quotation marks removed; emphasis in original); see also, e.g., Acuity, A Mut. Ins. Co. v. Servs. Constr., LLC, No. 5:15-CV-107-REW, 2017 WL 2543307, at *5-7 (E.D. Ky. June 12, 2017) (thoroughly explaining the contours of Kentucky's doctrine of reasonable expectations). The exclusion here, as the Court discusses in this Opinion, was "unequivocally conspicuous, plain and clear." McClendon, 157 S.W.3d at 634. Even if "Kentucky law envisions that the particulars of a given situation could inject ambiguity into terms nominally clear," Acuity, 2017 WL 2543307, at *7, Stanley establishes, in the Court's opinion, no reasonable expectation of coverage, in light of the record and the contract language actually agreed to. See, e.g., Healthwise of Ky., Ltd. v. Anglin, 956 S.W.2d 213, 216-17 (Ky. 1997); Am. Family Life Assur. Co. v. Bilyeu, 921 F.2d 87, 89 (6th Cir. 1990).
"[A]ny applicable exclusion is sufficient to remove coverage," and the ASIC criminal act exclusion "clearly defines the coverage" here. Kemper Nat'l Ins. Cos., 82 S.W.3d at 874. "Consequently, the literal language of the exclusion must apply to preclude coverage in this case." Holzknecht, 320 S.W.3d at 120. The exclusion was "plainly and unequivocally presented in the four corners of the policy," and the Court accordingly enforces it. Phil. Indem. Ins. Co., Inc. v. Tryon, 502 S.W.3d 585, 593 (Ky. 2016) (finding an exclusion "unambiguous" when "the text" was "quite clear" concerning what the parties "intend[ed] to exclude [from] coverage");
The at-issue GL form exclusion is in Section I.2.a, titled "Expected Or Intended Injury Or Damage," under the heading, "
The parties do not dispute the "bodily injury" element; indeed, Smith (twice) shot Brandon, and Brandon died. See DE #5-2, at 19 (defining "bodily injury" to include "death resulting from" physical harm). Was, however, bodily injury, a term that includes mere "physical harm," see id., "expected or intended from the standpoint of [Smith?]" On this record, the only reasonable answer is yes.
Start with the second sentence of Section I.2.a: "This exclusion does not apply to `bodily injury' . . . resulting from the use of reasonable force to protect persons or property." Twelve Kentuckians convicted Smith of reckless homicide. "A person is guilty of reckless homicide" in Kentucky "when, with recklessness he causes the death of another person." KRS 507.050(1). A
KRS 501.020(4). Thus, put a bit more simply, "recklessness is the failure to perceive a risk that a reasonable person in the same situation would have perceived." Robertson v. Commonwealth, 82 S.W.3d 832, 835 (Ky. 2002). Here, Smith testified that he intentionally (though he claimed justifiably) shot Brandon twice during the altercation. See, e.g., DE #22-1, at 5.
Stanley's brief, on this point, essentially tries to distinguish between Smith's act and his state of mind regarding the result of the act. Stanley contends that the jury determined that Smith acted recklessly as to the risk that his actions posed to Brandon, not that Smith used an unreasonable amount of force. See DE #40, at 20-21. This is strong lawyering and is, looking at the conviction in isolation, correct. One problem is, however, that Stanley, in a pleading, previously took an inconsistent position. See DE #15 (Amended Complaint), case no. 6:16-cv-264-REW, at ¶ 26 (disparaging Smith for using force against Brandon than Smith "could not have reasonably believed . . . was reasonable").
A bigger problem for Stanley is that, in Kentucky, self-protection is, as a general matter, a defense to reckless homicide. See, e.g., Elliott v. Commonwealth, 976 S.W.2d 416, 422 (Ky. 1998); Commonwealth v. Hager, 41 S.W.3d 828, 837-38 (Ky. 2001); Estep v. Commonwealth, 64 S.W.3d 805, 808, 810-11 (Ky. 2002); Hatcher v. Commonwealth, 310 S.W.3d 691, 700 (Ky. Ct. App. 2010); KRS 503.085(1) (providing that one who validly uses force in self-protection "is immune from criminal prosecution"). The defense of self-protection, in turn, probes (as relevant here) whether the force user "was privileged to use such physical force . . . as he believed to be necessary in order to protect himself[.]" Estep, 64 S.W.3d at 808; see also id. at 811 (confirming that this instruction "accurately described the nature of the defense of self-protection"); KRS 503.050(1). The parties do not dispute that self-protection was Smith's trial defense. See DE ##22, at 4 (ASIC: "Smith claimed [Brandon] posed a threat to him[.]"); 40, at 14 (Stanley: "During the criminal trial [Smith] maintained his innocence and maintained that he shot [Brandon] in self-defense."); 41, at 7.
One portion of Kentucky self-protection matches well the I.2.a second sentence: the requirement that the use of force be "to protect persons," a category that would, logically, including oneself.
A fact-finder could not reasonably conclude that, although Smith shooting Brandon was not necessary (as was one determination
Return to the primary sentence: "This insurance does not apply to . . . `[b]odily injury' . . . expected or intended from the standpoint of the insured." This record—as relatively unweighted by proof as it is—establishes but one reasonable conclusion: that Smith expected or intended bodily injury to Brandon.
The most direct, relevant proof that the parties tendered regarding the Rule 56 effort is a London Sentinel Echo newspaper article. See DE #22-1.
Id. at 5.
This is a report of proof from a person who intentionally shot Brandon, and who expected and intended to cause bodily injury to Brandon. Smith was "afraid for his own life," and Brandon "was starting" to scare him. Smith knew that he "had to do what [he] had to do," and "knew he had to take action," not only to protect his own life,
Further, the proof from Dr. William Ralston, according to the Sentinel Echo, indicated two shots to Brandon's torso—one that "entered the left chest area near the third rib, . . . then traveled through the aorta, the heart, the right lung and was recovered from the right back area," and a second that "entered from the right back area, traveling through the ribs, liver, lung, and heart before lodging near the left arm pit." DE #22-1, at 3-4. Other trial proof apparently indicated that "there was no malfunction with the gun," which was "in good working condition with no problems with the trigger pull or safety." Id. at 4. One witness even reported that Smith warned Brandon, "Please don't make me hurt you." Id. at 5.
"Whether an insured intended the consequences of [his] action is normally a question of fact and not one of law. The determination of whether an insured expected or intended the damage resulting in the claim is for the jury. . . . Determination of intent is normally inappropriate for summary judgment." James Graham Brown Found., Inc. v. St. Paul Fire & Marine Ins. Co., 814 S.W.2d 273, 276 (Ky. 1991); see also id. at 278-79 ("The `expected or intended' exception is inapplicable unless the insured specifically and subjectively intends the injury giving rise to the claim."). However, summary judgment "can be proper on any issue including state of mind questions such as intent and expectation. Generally when . . . controlling facts are not in dispute, summary judgment can be proper." Id. at 276-77.
That is the case here: this is a scenario where summary judgment, even as to Smith's state of mind, is proper. Smith's testimony—using phrases like "I had to do what I had to do" and saying he "knew he had to take action"—strongly imply an intent to physically harm. "I had to get the threat over," Smith said, indicating specific intent and the expectation to neutralize, via firearm discharge, the threat he perceived Brandon to pose. Smith acted, he said, with the goal in mind of protecting his own life, as well as the lives of those in the store. The only reasonable interpretation of these comments is that Smith expected and intended to physically harm Brandon when he shot him—Smith wanted to incapacitate Brandon.
That the jury convicted of reckless homicide does not change, indeed it reinforces, this conclusion. The verdict indicates that Smith failed to perceive a substantial and unjustifiable risk of death; it does not address Smith's expectation or intent regarding mere physical harm. See Hasch, 421 S.W.3d at 355-56; Elliott, 976 S.W.2d at 419, 422; KRS 507.050(1) ("A person is guilty of reckless homicide when, with recklessness he causes the death of another person.") & 501.020(4) (contemplating that one acts "recklessly with respect to a result . . . described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur" (emphases added)); Mitchell v. State, 321 S.W.3d 30, 40 (Tex. App. 2010). The other record proof (such as it is) one-sidedly supports a finding of expectation and intent to cause harm, even if summary judgment would be improper concerning an expectation or intent to cause death. A person could deliberately shoot someone with the intent merely to harm, not kill. See, e.g., State v. Madden, 294 A.2d 609, 613, 615-16, 619 (N.J. 1972); State v. Muzzy, 262 N.W. 335, 335 (N.D. 1935); Bard v. State, 214 P. 939, 941 (Okla. Crim. App. 1923).
Additionally, and independently, Smith committed an "inherently injurious" act in deliberately twice shooting Brandon, similar to prior analytical examples of throwing "an intentional punch in the face," see Walker v. Econ. Preferred Ins. Co., 909 S.W.2d 343, 345 (Ky. Ct. App. 1995), or "an intentional act" of "sexual molestation," see Thompson v. W. Am. Ins. Co., 839 S.W.2d 579, 581 (Ky. Ct. App. 1992). This "inferred intent rule" recognizes that "in certain circumstances one may reasonably infer from the facts that the actor intended the harm, without needing to resort to proof of that intent." Nationwide Mut. Fire Ins. Co. v. Pelgen, 241 S.W.3d 814, 817 (Ky. Ct. App. 2007). Kentucky courts apply this rule to intentional firearm discharge scenarios. See, e.g., id. at 818; Ky. Farm Bureau Mut. Ins. Co. v. Coyle, 285 S.W.3d 299, 306 (Ky. Ct. App. 2008); Stone v. Ky. Farm Bureau Mut. Ins. Co., 34 S.W.3d 809, 812-13 (Ky. Ct. App. 2000); Coleman, 2016 WL 4256903, at *2-3. As Judge Atkins summarized, after surveying the cases, "When the facts are clear that a shooting is intentional, a court may infer intent to harm." Nationwide Mut. Fire Ins. Co. v. James, No. 09-40-EBA, 2011 WL 382221, at *4-5 (E.D. Ky. Feb. 3, 2011).
The record and law here, thus, "compel only one reasonable inference" regarding Smith's mindset during the shooting: that he expected and intended bodily harm to Brandon. See Brown Found., 814 S.W.2d at 277. This conclusion means that the Section I.2.a exclusion applies and "preclude[s] coverage in this case." Holzknecht, 320 S.W.3d at 120; Brown Found., 814 S.W.2d at 278-81 (contemplating that such an exclusion can be enforceable); Grange Mut. Cas. Co. v. Ross, 125 F.3d 855, No. 96-5355, 1997 WL 640018, at *1 (6th Cir. Oct. 14, 1997) (table) (affirming Judge Wilhoit's decision applying such an exclusion); Westfield Ins. Co. v. Tech Dry, Inc., 336 F.3d 503, 507-10 (6th Cir. 2003). The conviction precludes the exclusionary exception in sentence two of § I.2.a. The exclusion was "plainly and unequivocally presented in the four corners of the policy," and the Court accordingly enforces it. Tryon, 502 S.W.3d at 593.
For these reasons, the Court
The Court also notes, at the outset, especially regarding the GL form issues, the relatively limited scope of proof submitted vis-à-vis the Rule 56 effort. The Court has not seen, to name but a few examples, Smith's full deposition, any evidence or actual filings from the underlying criminal trial, or the A&B video.
Additionally, the Court assumes (without deciding), for purposes of processing the LEL claims, that Smith in both his individual and official capacities is validly an insured, per Section IV.1, and that he (accused of wrong while endeavoring to arrest Brandon) committed a "law enforcement wrongful act," per Sections I.A.1, VII.7, and VII.8. The Court notes that it would be difficult to construe the act of attempting to effectuate arrest, by a duly elected Laurel County official, as not falling within the coverages and definitions of the LEL policies (and indeed, the other policies). This is particularly so given Smith's elected status and given Kentucky's generally expansive view of employment scope. See, e.g., Patterson v. Blair, 172 S.W.3d 361, 369-72 (Ky. 2005); Frederick v. Collins, 378 S.W.2d 617, 618-20 (Ky. 1964). The Court saves any plenary review for another day due to the clarity of the exclusion in this case.
Normally, "hearsay evidence cannot be considered on a motion for summary judgment." Wiley v. United States, 20 F.3d 222, 226 (6th Cir. 1994). However, where, as here, a party "fails to object . . . to the . . . evidentiary materials submitted by the other party in support of its position on summary judgment, any objections to the district court's consideration of such materials are deemed to have been waived," and the Court properly considers the tendered proof. Id.; see also, e.g., Powers v. Hamilton Cnty. Pub. Defender Comm'n, 501 F.3d 592, 613 n.3 (6th Cir. 2007) ("None of Powers's evidence satisfies the standards of Federal Rule of Civil Procedure 56 for evidence submitted in support of summary judgment. . . . Despite these glaring deficiencies, we may still consider Powers's evidence because the Public Defender did not object to its competence below (or on appeal, for that matter)."); Moore v. Holbrook, 2 F.3d 697, 699 (6th Cir. 1993) ("Although the documents do not satisfy the requirements of Rule 56(e), the argument, nonetheless, does not justify reversal of the district court's judgment. Moore failed to object to the documents inclusion in defendants' motion for summary judgment. Because Moore did not raise the issue before the district court, it is not reviewable on appeal."); Dobrowiak v. Convenient Family Dentistry, Inc., 315 F. App'x 580, 584-85 (6th Cir. 2009). Cases contemplate a "gross miscarriage of justice" exception to this waiver rule, see Wiley, 20 F.3d at 226, but the Court perceives (and Stanley identifies) no basis for that to apply here. Stanley does not dispute the relevant parts of the version relied on by ASIC. See DE #40, at 1-2.
