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

United States District Court, D. Maine

August 29, 2017



          George Z. Singal, United States District Judge.

         Before 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.


         In its 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.

         Regarding 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.[1]


         The 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.

         The Maine Action: Allison Burka v. Douglas Burka, Docket No. 16-CV-20 (Maine Superior Court, Cumberland County)

         As now 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.)

         The 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 allegations, stating,

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. ¶ 25).

         The Professional Liability Policy

         Plaintiff Medical Mutual Insurance Company of Maine, Inc., issued a professional liability policy (“the Policy”) for which the Named Insured is SMHC Physician Services, P.A.[2] 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 ...

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