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Medical Mutual Insurance Co. of Maine, Inc. v. Burka

United States District Court, D. Maine

May 3, 2017

MEDICAL MUTUAL INSURANCE COMPANY OF MAINE, INC., Plaintiff,
v.
DOUGLAS BURKA, Defendant.

          ORDER ON PLAINTIFF'S MOTION TO DEFER CONSIDERATION OF DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          George Z. Singal United States District Judge

         Before the Court are Defendant's Motion for Partial Summary Judgment (ECF No. 18) and Plaintiff's Motion to Defer Consideration of Motion for Partial Summary Judgment (ECF No. 32). For the reasons explained below, the Court DENIES both Plaintiff's Motion to Defer and Defendant's Motion for Partial Summary Judgment. However, the Court GRANTS partial summary judgment in Plaintiff's favor on the issue of whether Plaintiff currently has a duty to defend the relevant suits in Maryland and Maine.

         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 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[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 (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).

         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 (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., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quotation marks and 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.”). “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 for the moving party.” In re Ralar Distribs., Inc., 4 F.3d 62, 67 (1st Cir. 1993).

         Federal Rule of Civil Procedure 56(d) provides, “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a motion for summary judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” However, “Rule 56(d) relief is not to be granted as a matter of course, and a court is entitled to refuse a Rule 56(d) motion if it concludes that the [movant] is unlikely to garner useful evidence from supplemental discovery.” United States ex rel. Booker v. Pfizer, Inc., 847 F.3d 52, 61 (1st Cir. 2017) (alteration in original) (quotation marks omitted).

         Finally, a court may enter summary judgment in favor of the nonmoving party pursuant to Federal Rule of Civil Procedure 56(f)(1) if that party is entitled to judgment as a matter of law and “the losing party [is] on notice that she had to come forward with all of her evidence.” Rogers v. Mgmt. Tech., Inc., 123 F.3d 34, 38 (1st Cir. 1997) (quotation marks omitted).

         II. FACTUAL BACKGROUND

         The Professional Liability Policy

         Plaintiff Medical Mutual Insurance Company of Maine, Inc. (“MMIC”) issued a professional liability policy (“the Policy”) for which the Named Insured is SMHC Physician Services, P.A. (“SMHC”).[1] The Policy includes a “Slot Policy Endorsement, ” which covers “all individual physicians listed on the SCHEDULE OF SLOTS ENDORSEMENT and working as employees or contractors of the NAMED INSURED.” (Def.'s Statement of Material Facts, Ex. A (ECF No. 22-1) (“Policy”), Page ID # 255.) The Endorsement specifies that “each such individual physician position shall be termed a ‘slot'” and that “[e]ach individual physician while occupying a ‘slot' shall be an INSURED under the provisions of the Policy.” (Policy, Page ID # 255.) The Endorsement further provides the following coverage agreement:

Coverage afforded to insured physicians under this Policy is limited to CLAIMS arising from MEDICAL INCIDENTS or from NON-PATIENT INCIDENTS which result from their PROFESSIONAL SERVICES rendered within the scope of their duties as a physician employee or contractor of the NAMED INSURED . . . .

(Id.) Defendant Dr. Douglas Burka was listed by name on the schedule of Slot Coverage with an individual retroactive date of August 13, 2012. He was deleted from the Schedule of Covered Physicians by an endorsement dated August 25, 2015.

         The general coverage agreement of the Policy provides,

We agree to pay on your behalf DAMAGES and DEFENSE COSTS which you become legally obligated to pay due to any CLAIM made against you as a result of a MEDICAL INCIDENT as defined in this Policy . . . provided that:
1. the MEDICAL incident results from your PROFESSIONAL SERVICES . . . and the MEDICAL INCIDENT occurs on or after the Retroactive Date noted on the DECLARATIONS PAGE for this Policy;
[and]
We agree to pay on your behalf DAMAGES and DEFENSE COSTS which you become legally obligated to pay due to any CLAIM made against you as a result of a NON-PATIENT INCIDENT as defined in this Policy . . . provided that:
1. the NON-PATIENT INCIDENT results from your PROFESSIONAL SERVICES . . . and the NON-PATIENT INCIDENT occurs on or after the Retroactive Date noted on the DECLARATIONS PAGE for this Policy . . . .

(Id., Page ID #s 271, 272.) The Policy provides the relevant definitions as follows:

A. “CLAIM” means an oral or written demand against an INSURED for DAMAGES, and includes civil lawsuits . . . .
B. “DAMAGES” means monetary sums not exceeding the Limit of Liability for which you are legally obligated to pay (including pre-judgment interest) to compensate for injury or death as a result of a MEDICAL INCIDENT [or] a NON-PATIENT INCIDENT . . . DAMAGES do not include restitution, non-monetary relief or the cost of complying with non-monetary relief, uninsurable matters, fines, ...

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