Admiral Insurance Company v. Joseph Banasiak

72 N.E.3d 491, 2017 WL 1024546, 2017 Ind. App. LEXIS 127
CourtIndiana Court of Appeals
DecidedMarch 16, 2017
DocketCourt of Appeals Case 45A05-1604-PL-859
StatusPublished

This text of 72 N.E.3d 491 (Admiral Insurance Company v. Joseph Banasiak) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Admiral Insurance Company v. Joseph Banasiak, 72 N.E.3d 491, 2017 WL 1024546, 2017 Ind. App. LEXIS 127 (Ind. Ct. App. 2017).

Opinion

Brown, Judge.

Admiral Insurance Company (“Admiral”) appeals the trial court’s denial of its motion for summary judgment and its grant of declaratory judgment. Admiral raises one issue which we revise and restate as whether the trial court erred in denying its motion for summary judgment or in entering declaratory judgment in favor of the Estate of Dr. Habib Zadeh. 1 We reverse, 2

*493 Facts and Procedural History

Admiral issued a professional liability policy (the “Policy”) to Dr. Habib T. Za-deh, with an initial policy period from September 21, 2008, to September 21, 2009, and with a “Retroactive Date” of September 21, 2005. Appellant’s Appendix at 58, 62. The Policy provides:

PHYSICIANS, SURGEONS AND DENTISTS PROFESSIONAL LIABILITY INSURANCE
Ciaims-Made
THIS IS A CLAIMS-MADE POLICY. COVERAGE AFFORDED BY THIS POLICY IS LIMITED TO LIABILITY FOR ONLY THOSE “CLAIMS” THAT ARE FIRST MADE AGAINST YOU AND REPORTED IN WRITING TO US DURING THE POLICY PERIOD OR AN EXTENDED REPORTING PERIOD. PLEASE REVIEW THIS POLICY CAREFULLY TO DETERMINE YOUR RIGHTS, DUTIES AND WHAT IS AND IS NOT COVERED.
* sfc ⅜ # ⅜
I.INSURING AGREEMENT
We will pay on behalf of the “insured” those amounts in excess of the Deductible stated in the Declarations, if applicable, which you are legally obligated to pay as “damages” for a “claim” first made against you during the “policy period” and reported to us in writing during the “policy period”, or an Extended Reporting Period, provided that the following additional conditions are met:
⅜ ‡ ⅜ ⅜ ⅜
D. We receive notice of a “claim” within sixty (60) days after the expiration or termination date of this policy in accordance with:
1. Section VII. “INSURED’S” DUTIES IN THE EVENT OF A “CLAIM”
2.Section V. EXTENDED REPORTING PERIOD.
⅜ ⅝ ⅜ # ⅜
VII. “INSURED’S” DUTIES IN THE EVENT OF A “CLAIM”
Each “insured” must comply with the following conditions:
A. If a “claim” to which this policy applies is made against you, then you must give written notice, as soon as practicable, and as otherwise required by this policy to us.
B. With regard to Item 11. DEFINITIONS, b. 1, 2 and 3, when a “claim” is reported in writing to us, the notice must contain reasonably obtainable information regarding the alleged act, error or omission including, but not limited to names of the potential witnesses, name of the alleged claimant(s), and the extent and type of “claim” anticipated.
C. You must cooperate with us in the defense and investigation of any “claim”. We may require that you submit to examination under oath, if required, produce and make available all records, documents and other materials which we deem relevant to the “claim”.
1. You must also, at our request, attend hearings, depositions and trials.
2. In the course of investigation or defense, provide us with written statements as requested by us or your attendance at meetings with us.
3. You must assist us in effecting settlement, securing and providing evidence and obtaining the attendance of witnesses, all without charge to us.
⅝? ⅝ ⅝ ⅝ ⅜
VIII. OTHER CONDITIONS
*494 ⅜ ⅜ ⅜ ‡ ⅜
J. Action Against Us
No action shall be brought against us by you to recover for any loss or “damages” under this policy unless, as a condition precedent thereto:
1, you have fully complied with all the terms and conditions of this policy; and
2. the amount of such loss or “damages” has been fixed or rendered certain:
a. by a final judgment against you after trial of the issues; or
b. the time to appeal such judgment has expired without an appeal being taken; or
c. if appeal is taken, after the appeal has been determined; or
d. the “claim” is settled in accordance with the terms and conditions of this policy.
In no event shall any action brought by anyone be maintained against us unless such action is brought within twenty-four (24) months from the time the right to bring action first becomes available.
⅜ ⅝ * ⅜

Id. at 64-70.

On July 15, 2009, Dr. Zadeh elected to cancel coverage under the Policy. A cancellation endorsement states: “In consideration of a return premium of $12,875.00, it is hereby agreed that this insurance is cancelled effective 07/15/2009.” Id. at 86. That same day, Dr. Zadeh elected to purchase an Extended Claim Reporting Period which provided that the extended period was from July 15, 2009, to July 15, 2010.

Meanwhile, on October 6, 2008, Jennifer Muehlman filed a complaint against “John Doe, M.D.” in the Lake County Superior Court in cause number 45C01-0810-CT-154 (“Cause No. 154”) alleging that she sustained an injury to her leg while jogging on October 8, 2006, that she sought treatment from the defendant for her injury, and that the defendant diagnosed her with a fracture and performed surgery on October 9, 2006. Id. at 92. She alleged she sustained severe and permanent injuries that were proximately caused by the defendant’s negligence. An entry in the chronological case summary for Cause No. 154 states “Service: Summons and Complaint” and “Doe M.D., John[,] Habib T. Zadeh, M.D.” Id. at 96. In a letter dated October 15, 2008, the Indiana Patients’ Compensation Fund wrote to Dr. Zadeh stating:

Please find enclosed a copy of a complaint filed by Jennifer Muehlman, pursuant to I.C. 34-18-1-1, et seq., effective July 1,1975.
We acknowledge the filing of this complaint with this department pursuant to the above-referenced law. Please note that our records indicated that your proof of financial responsibility, filed by your Insurer has lapsed. Your Insurer has 90 days from the actual date of expiration in which to file your renewal. Your Insurer must notify us upon timely renewal, so that we may confirm coverage for this claim. If we do not receive such notice, there may not be qualification pursuant to I.C. 34-18-1-1 et seq.
⅜⅜⅜⅜⅜
Confirmation of this notice by the department and the advice as contained herein is, by copy of this letter, communicated to Jennifer Muehlman.

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Bluebook (online)
72 N.E.3d 491, 2017 WL 1024546, 2017 Ind. App. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/admiral-insurance-company-v-joseph-banasiak-indctapp-2017.