American Casualty Co. of Reading v. Belcher

709 F. App'x 606
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 27, 2017
DocketNo. 17-10848 Non-Argument Calendar
StatusPublished

This text of 709 F. App'x 606 (American Casualty Co. of Reading v. Belcher) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Casualty Co. of Reading v. Belcher, 709 F. App'x 606 (11th Cir. 2017).

Opinion

PER CURIAM:

Samuel Belcher and his codefendants developed bacterial infections as a result of Eastern Pharmacy’s unsanitary method of repackaging eye medication. Eastern Pharmacy’s insurer, American Casualty Co. of Reading, Pennsylvania, brought suit against the defendants to determine whether their injuries constituted one, two, or three or more “claims” under Eastern Pharmacy’s insurance policy. The district court granted summary judgment to American Casualty. This is the defendants’ appeal.

I.

Because we are reviewing an entry of summary judgment against the defendants, we “draw all inferences and review[ ] all evidence in the light most favorable to [them].” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks omitted).

Eastern Pharmacy’s policy provided $1 million in coverage for “each claim” and up to $3 million in coverage in the “aggregate.” It defined “claim” as “a demand for money or services alleging injury or damage.” (Emphasis omitted). The policy also stated that “[i]f related claims are made against you, all such related claims shall be considered a single claim.” (Emphasis omitted). A “related claim” was defined as “all claims arising out of a single act, error or omission or arising out of related acts, errors or omissions in the rendering of professional services.” (Emphasis omitted). Finally, the term “related acts, errors or omissions” was defined as “all acts, errors or omissions in the rendering of professional services ... that are logically or causally connected by any common fact, circumstance, situation, transaction, event, advice or decision.” (Emphasis omitted). American Casualty also issued an insurance policy to James Kilbride, the pharmacist in charge at Eastern Pharmacy, in which the relevant terms were identical.

During the policy period, Dr. Salomon Melgen ordered two drugs called Avastin and Lucentis and arranged for them to be delivered to Eastern Pharmacy. Both drugs are manufactured by Genentech, Inc., and both are commonly used to treat eye disorders. But before they could be used for that purpose, Eastern Pharmacy had to repackage them into single use vials.

Daoud Zayed, Eastern Pharmacy’s owner, performed that repackaging under the supervision of Kilbride. Zayed’s procedure for repackaging the Avastin and Lucentis was identical in all material respects. He would take vials of the medication from the refrigerator into the repackaging room. There, he would remove the vials’ caps, exposing the vials to the open air. He would then fill single use syringes out of the vials and, when the syringes were ready, , place them in the refrigerator. He performed that procedure while wearing nonsterile protective gear and using nonst-erile equipment, including nonsterile gloves, gowns, and syringes. In addition, he repackaged the medication on top of a laminar flow hood that he never turned on.

Melgen received the Avastin and Lucen-tis single use syringes from Eastern Pharmacy between June 2013 and December 2013. He injected Avastin into Belcher’s eyes on October 1, 2013. The other defendants received intraocular injections of Avastin or Lucentis from him on January 2, 2014. After the injections the defendants developed infections in their treated eyes, which resulted in partial or total loss.of vision. Testing determined that at least two different strains of bacteria had caused the infections.

In response to reports of complications after the injections, the Food and Drug Administration and the Florida Department of Business- and Professional Regulation investigated Eastern Pharmacy. They concluded that the pharmacy’s procedure for repackaging Avastin and Lucentis was deficient in a number of ways. For example, the FDA pointed out that Zayed had failed to use the laminar flow hood and that the repackaging room was not adequately isolated from the common pharmacy area.

The defendants separately filed complaints or made demands against Eastern Pharmacy. Eastern Pharmacy, Kilbride, American Casualty, and the defendants then entered into a settlement agreement satisfying the defendants’ claims and releasing Eastern Pharmacy and Kilbride from liability. The agreement required American Casualty to file a declaratory judgment action to determine how many “claims,” as the policy used the term, it was liable for. Because the policy limited the insurance payout to $1 million for a single “claim” but up to $3 million in the aggregate, the defendants would be entitled to greater compensation if the district court ruled that the defendants’ injuries constituted two or three “claims.” In accordance with the agreement, American Casualty filed the complaint in this case, alleging that the single “claim” limit of $1 million applied.

After discovery, the district court granted American Casualty’s motion for summary judgment, concluding that all of the defendants! claims were “related,” meaning that under the policy they all constituted a single “claim.” The district court denied the defendants’ motions for summary judgment.

II.

A.

“We review de novo the district court’s interpretation of the insurance policy and its grant of summary judgment.... ” Zucker for BankUnited Fin. Corp. v. U.S. Specialty Ins. Co., 856 F.3d 1343, 1348 (11th Cir. 2017). The parties agree that Florida law governs this case. “Under Florida law, insurance contracts are construed according to their plain meaning.” Id. (quoting Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla. 2005)).

The defendants contend that their claims are not “related” because there were many differences in the circumstances of their injuries. They point out that they received two different types of medication, their syringes were prepared on different dates, they received their injections on different dates, and they were infected with at least two different strains of bacteria. That line of argument misunderstands the inquiry.

The policy defined “related claim[s]” as claims “arising out of related acts, errors or omissions.” (Emphasis omitted). Under Florida law, “arising out of’ means “ ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with.’ ” Id. (quoting Taurus Holdings, 913 So.2d at 539). The term “requires more than mere coincidence” between the conduct and the injury, but it does not require proximate causation. Id. And the policy’s definition of “related acts, errors or omissions” broadens the scope of “related claim” even further. Acts, errors, or omissions are “related” under the policy if they are “logically or causally connected by any common fact, circumstance, situation, transaction, event, advice or decision.” (Emphasis added).

Accordingly, the question is not whether there are any differences between the defendants’ individual claims. Instead, we must determine whether the claims are logically or causally connected by “any” common, fact, circumstance, etc. If they-are, the plain meaning of the insurance policy requires that all the claims be con- / sidered a single “claim” for purposes of determining the applicable liability limit.

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Related

Hamilton v. Southland Christian School, Inc.
680 F.3d 1316 (Eleventh Circuit, 2012)
Tire Kingdom, Inc. v. First Southern Ins. Co.
573 So. 2d 885 (District Court of Appeal of Florida, 1990)
PURRELL v. State Farm Fire and Cas. Co.
698 So. 2d 618 (District Court of Appeal of Florida, 1997)
Taurus Holdings v. US Fidelity
913 So. 2d 528 (Supreme Court of Florida, 2005)
Clifford A. Zucker v. U.S. Specialty Insurance Company
856 F.3d 1343 (Eleventh Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
709 F. App'x 606, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-casualty-co-of-reading-v-belcher-ca11-2017.