Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sundaram v. Coverys, ProSelect Insurance Co.

United States District Court, D. Maine

September 10, 2015

MALATHY SUNDARAM, Plaintiff
v.
COVERYS, PROSELECT INSURANCE COMPANY, and INTEGRATED INSURANCE SOLUTIONS, Defendants

          For MALATHY SUNDARAM, Plaintiff, Counter Defendant: JAMES M. BOWIE, LEAD ATTORNEY, HILLARY J. BOUCHARD, THOMPSON & BOWIE, LLP, PORTLAND, ME.

         For COVERYS, Defendant: HARVEY NOSOWITZ, TAMARA S. WOLFSON, LEAD ATTORNEYS, ANDERSON KREIGER, LLP, CAMBRIDGE, MA; MAUREEN M. STURTEVANT, PHILIP M. COFFIN, III, LEAD ATTORNEYS, LAMBERT COFFIN, PORTLAND, ME.

         For PROSELECT INSURANCE COMPANY, Defendant, ThirdParty Plaintiff, Counter Claimant: HARVEY NOSOWITZ, TAMARA S. WOLFSON, LEAD ATTORNEYS, ANDERSON KREIGER, LLP, CAMBRIDGE, MA; MAUREEN M. STURTEVANT, PHILIP M. COFFIN, III, LEAD ATTORNEYS, LAMBERT COFFIN, PORTLAND, ME.

         For INTEGRATED INSURANCE SOLUTIONS, Defendant: WENDELL G. LARGE, LEAD ATTORNEY, HEIDI J. HART, RICHARDSON, WHITMAN, LARGE & BADGER, PORTLAND, ME.

Page 420

          ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

         George Z. Singal, United States District Judge.

         Before the Court are the cross-motions for summary judgment filed by Plaintiff Dr. Malathy Sundaram (" Plaintiff" or " Dr. Sundaram" ) and Defendants COVERYS, ProSelect Insurance Company (together with COVERYS, " ProSelect" ), and Integrated Insurance Solutions (" Integrated" and, together with ProSelect, " Defendants" ). For the reasons explained herein, the Court GRANTS Plaintiff's Motion for Summary Judgment with Incorporated Memorandum of Law (ECF No. 21) (" Pl.'s Mot." ) and DENIES both ProSelect's Motion for Summary Judgment with Incorporated Memorandum of Law (ECF No. 19) (" ProSelect's Mot." ) and Integrated's Motion for Summary Judgment with Incorporated Memorandum of Law (ECF No. 20) (" Integrated's Mot." ).

         I. LEGAL STANDARD

         Generally, a party is entitled to summary judgment if, on the record before the Court, it appears " that there is no genuine issue as to any material fact and that the

Page 421

moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)(2). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is " genuine" if " the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A " material fact" is one that has " the potential to affect the outcome of the suit under the applicable law." Nereida--Gonzalez v. Tirado--Delgado, 990 F.2d 701, 703 (1st Cir. 1993) (citing Anderson, 477 U.S. at 248) (additional citation omitted).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In determining whether this burden is met, the Court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004).

         Once the moving party has made this preliminary showing, the nonmoving party must " produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); see also Fed.R.Civ.P. 56(e). " Mere allegations, or conjecture unsupported in the record, are insufficient." Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011) (quoting Rivera--Marcano v. Normeat Royal Dane Quality A/S, 998 F.2d 34, 37 (1st Cir. 1993)); see also Wilson v. Moulison N. Corp., 639 F.3d 1, 6 (1st Cir. 2011) (" A properly supported summary judgment motion cannot be defeated by conclusory allegations, improbable inferences, periphrastic circumlocutions, or rank speculation." (citations omitted)). " As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (quoting In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993)).

         The above-described " standard is not affected by the presence of cross-motions for summary judgment." Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 34 (1st Cir. 2005) (citation omitted). " [T]he court must mull each motion separately, drawing inferences against each movant in turn." Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted); see also Alliance of Auto. Mfrs., 430 F.3d at 34 (" [L]ike the district court, we must scrutinize the record in the light most favorable to the summary judgment loser and draw all reasonable inferences therefrom to that party's behoof." ).

         II. FACTUAL BACKGROUND[1]

         A. The Insurance Policy

         ProSelect issued a medical professional liability insurance policy, number 2-20191, to Dr. Sundaram, effective May 15, 2013 to May 15, 2014 (the " Policy" ). (Stipulated Statement of Undisputed Facts for Phase I Summary Judgment Motion (ECF No. 18) (" SSUF" ) ¶ 3.) ProSelect issued a renewal medical professional liability insurance

Page 422

policy, number 2-20191, to Dr. Sundaram, effective May 15, 2014 to May 15, 2015.[2] (SSUF ¶ 4.) Under the Policy, and subject to the terms and limitations set forth therein, ProSelect agreed to pay " DAMAGES . . . because of a CLAIM for an INCIDENT in the performance of PROFESSIONAL SERVICES by YOU . . . ." (SSUF Ex. C at PageID # 329.) The Policy's provision regarding the duty to defend states that Defendant ProSelect has " the right and duty to defend . . . any SUIT brought against YOU seeking DAMAGES that are covered by this POLICY . . . ." (Id. at PageID # 331.)

         " INCIDENT" is defined in the Policy as " any negligent act, error or omission . . . ." (Id. at PageID # 339.) " PROFESSIONAL SERVICES" is defined (in relevant part) as " [m]edical, surgical, dental or nursing treatment performed in the INSURED'S specialty . . . ." (Id. at PageID # 340.)

         The Policy sets forth certain exclusions from liability, including the exclusion of liability for any claims " [a]rising out of any dishonest, fraudulent, criminal or malicious acts or omissions or deliberate or intentional wrongdoing or bad faith committed or alleged to have been committed by any INSURED." (Id. at PageID # 335.)

         B. The McCullough Case

         On January 28, 2014, an attorney representing Christine McCullough (" McCullough" ) sent a letter to Dr. Sundaram. (SSUF ¶ 1.) In the letter, McCullough's attorney alleged that McCullough was terminated by her employer, Home Health Visiting Nurses (" HHVN" ), " because of [Dr. Sundaram's] false complaint that she was rude and inappropriate." (SSUF Ex. A at PageID # 307.)

         On June 24, 2014, McCullough filed suit against Dr. Sundaram in Maine Superior Court in York County. (SSUF ¶ 2.) In that case, Christine McCullough v. Malathy Sundaram and HomeHealth Visiting Nurses, York Superior Court Docket Number CV-2014-0121 (the " McCullough Case" ), McCullough brought two claims against Dr. Sundaram, one count of tortious interference with contract and one count of defamation. (See SSUF Ex. B.)

         The following description of McCullough's claims against Dr. Sundaram is based upon the allegations made in the McCullough Case complaint (SSUF Ex. B) (hereinafter, the " McCullough Complaint" ):

         McCullough was employed at HHVN as a visiting nurse at the time that she made a home visit to one of Dr. Sundaram's patients on January 7, 2014. (Id. at PageID # 310.) According to McCullough, a test revealed that the patient had an elevated " INR" test result. (Id. at PageID # 311.) McCullough asserts that she provided the patient's test result to Dr. Sundaram's medical office by telephone, and then called back on January 9, 2014 when she learned that Dr. Sundaram had not been in contact with the patient regarding the test result. (Id.) McCullough spoke to Dr. Sundaram's medical assistant about the office process by which messages were conveyed to Dr. Sundaram. (Id. at PageID # 312.) According to McCullough, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.