United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR AMENDMENT AND/OR
CLARIFICATION AND PLAINTIFF'S MOTION TO REOPEN
Z. Singal, United States District Judge.
the Court is Defendant's Motion for Amendment and/or
Clarification of the Court's May 3, 2017 Order (ECF No.
45) and Plaintiff's Motion to Reopen Discovery (ECF No.
48). For the reasons briefly explained below, the Court
GRANTS IN PART and DENIES IN PART Defendant's Motion. As
a result of its decision to GRANT summary judgment in
Plaintiff's favor on the issue of whether Plaintiff ever
had a duty to defend the relevant suit in Maine state court,
the Court DENIES AS MOOT Plaintiff's Motion.
PROCEDURAL HISTORY& REQUEST TO SUPPLEMENT THE
May 3, 2017 Order, the Court determined that further
discovery was not necessary to determine Plaintiff's duty
to defend in two civil actions brought against Defendant;
that Plaintiff had no duty to defend in the Maryland action;
and that Plaintiff had no duty to defend in the Maine action
after the dismissal of any claim seeking damages because the
relevant liability policy does not cover claims seeking other
forms of relief. (ECF No. 44, Page ID # 522.) However, the
Court concluded that it could not determine whether Plaintiff
had a duty to defend in the Maine action before the
dismissal of the damages claims. (ECF No. 44, Page ID # 521
n.10.) Defendant has now moved to supplement the record to
include additional documents from the Maine state court
action and asks the Court to amend its prior ruling to
address this issue and explicitly grant Defendant summary
judgment on the question of whether Plaintiff had a duty to
defend the Maine action through December 14, 2016.
Defendant's request to supplement the record before this
Court, Defendant attached to his Motion six exhibits (ECF
Nos. 48-1-48-6). With respect to the exhibits that are
pleadings or orders from the underlying Maine state court
action, this request to supplement is GRANTED WITHOUT
OBJECTION to the extent the exhibits have not already been
placed on the docket and considered by the Court in
connection with its May 3, 2017 Order. With respect to the
April 18, 2016 Opposition to Plaintiff's Motion to Amend
in the Maine state court action (ECF No. 45-2), Plaintiff
objects to the Court's consideration of that exhibit and
argues that the exhibit is essentially immaterial to the
question that Defendant now asks the Court to resolve. The
Court agrees and does not consider this motion paper in
resolving the substantive question posed by the pending
Motion for Amendment and/or Clarification.
Court directs interested readers to the factual background
laid out in its May 3, 2017 Order (ECF No. 44) and limits its
factual recitation here to the additional facts culled from
the supplemented record as well as the key insurance policy
provisions that inform the Court's analysis of the
remaining duty to defend question.
Maine Action: Allison Burka v. Douglas Burka, Docket No.
16-CV-20 (Maine Superior Court, Cumberland County)
clarified by the supplemented record, on December 30, 2015,
Allison Burka, Defendant Douglas Burka's then-wife, filed
a four-count complaint against him asserting Invasion of
Privacy (Count I); Unlawful Disclosure of Confidential Health
Care Information (Count II); Intentional Infliction of
Emotional Distress (Count III); and violation of the
California Comprehensive Computer Data Access and Fraud Act
(Count IV). (ECF No. 45-1.) By Order dated March 29, 2016,
the Maine Superior Court dismissed the Invasion of Privacy
claim for failure to state a claim and dismissed the
California state law claim without objection. (ECF No. 45-3.)
Allison filed an Amended Complaint dated May 9, 2016, which
did not include the California statutory claim but, despite
the March 29th Order, did include the Invasion of Privacy
claim. (ECF No. 45-4.) The Invasion of Privacy claim was
again dismissed by the Superior Court on September 22, 2016.
(ECF No. 45-5.) On December 14, 2016, the parties stipulated
to the dismissal of the Intentional Infliction of Emotional
Distress claim with prejudice, leaving only the unlawful
disclosure claim. (ECF No. 45-6.)
initially filed Complaint alleges that Douglas had engaged
in, among other things, “unauthorized access to
[Allison's] medical records.” (Compl. (ECF No.
45-1) ¶ 1.) Specifically, the Complaint alleges,
In April and May of 2015, without [Allison]'s permission,
[Douglas] . . . improperly disclosed to himself and accessed
or attempted to access [Allison]'s confidential health
care information maintained by healthcare facilities and
providers in Maine including but not limited to Maine Medical
Center, Southern Maine Medical Center, and other healthcare
facilities and practitioners associated with or controlled by
MaineHealth, a Maine nonprofit corporation.
(Compl. ¶ 8.) In Count I, Allison alleges that Douglas
had invaded her privacy by intruding upon her
“confidential health care information” (Compl.
¶ 10) and that he had done so “with malice, in
that he was motivated by ill will toward” her (Compl.
¶ 11). The First Amended Complaint elaborates on the
This is an action for damages and injunctive relief arising
from a course of conduct by Defendant Douglas Burka that
involved emotionally abusive and controlling conduct of the
Defendant directed at Plaintiff Allison Burka [and] involved
his unauthorized access to the medical records in Maine of
Plaintiff . . .
(Amend. Compl. (ECF No. 45-4) ¶ 1.) The Complaint
alleges that Douglas “had staff privileges at Southern
Maine Healthcare” (Amend. Compl. ¶ 12) and that
during a period when “he was in the Washington D.C.
area but still employed in Maine and still a member of the
medical staff at Southern Maine Healthcare” (Amend.
Compl. ¶ 15), Douglas “accessed [Allison]'s
medical records at Southern Maine Healthcare without her
knowledge or consent” (Amend. Compl. ¶ 16). The
Complaint describes a previous incident in which Douglas had
accessed Allison's medical records without her consent
when they were living in Nashville, Tennessee, and that
“[a]s a result, [she] soon stopped seeking services
from mental health professionals at [the Nashville facility]
and was unwilling to seek such assistance elsewhere in
Nashville because of her fear that [Douglas] would access
those records as well.” (Amend. Compl. ¶ 10.)
Further, the Complaint alleges that when the couple moved to
Maine, “[f]earful of [Douglas]'s ability and
willingness to access her confidential health records,
[Allison] did not seek treatment for her worsening [mental]
condition which included suicidal ideation.” (Amend.
Compl. ¶ 12.) In general, Allison alleges that Douglas
accessed her medical records as part of “a continuing
course of illegal conduct directed at [her] physical and
mental well-being” (Amend. Compl. ¶ 22) and was
motivated by malice and ill will in doing so (Amend. Compl.
Professional Liability Policy
Medical Mutual Insurance Company of Maine, Inc., issued a
professional liability policy (“the Policy”) for
which the Named Insured is SMHC Physician Services,
As previously determined by the Court, Douglas Burka was also
an “insured” within the meaning of the Policy at
the time of the relevant allegations in the Maine suit by
virtue of his inclusion under the so-called Slot Policy
Endorsement. (ECF No. 44, Page ID # 516.) The Endorsement
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 . . . .
(Policy (ECF No. 22-1), Page ID # 255.) 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 ...