Ballow v. PHICO Insurance Co.

875 P.2d 1354, 17 Brief Times Rptr. 1801, 1993 Colo. LEXIS 939, 1993 WL 467764
CourtSupreme Court of Colorado
DecidedNovember 15, 1993
DocketNo. 92SC530
StatusPublished
Cited by54 cases

This text of 875 P.2d 1354 (Ballow v. PHICO Insurance Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ballow v. PHICO Insurance Co., 875 P.2d 1354, 17 Brief Times Rptr. 1801, 1993 Colo. LEXIS 939, 1993 WL 467764 (Colo. 1993).

Opinions

Justice MULLARKEY

delivered the Opinion of the Court.

We granted certiorari in this ease to address several issues arising out of a medical malpractice insurance carrier’s withdrawal from the Colorado market. The trial court, in a 294-page order, ruled in favor of the petitioners who are the doctors formerly insured by the medical malpractice insurance carrier. It held that the insurance carrier breached its contract with the doctors, engaged in fraud and negligent misrepresentation, and acted in bad faith. The court of appeals, in Ballow v. PHICO Insurance Co., 841 P.2d 344 (Colo.App.1992), reversed, holding that the trial court erred in finding that the insurer breached its contract with the doctors, and that it engaged in fraud, negligent misrepresentation, and bad faith conduct. We granted certiorari and, for the reasons set forth below, we reverse.

I.

The petitioners are 105 medical doctors, doctors of osteopathy, and doctors of podia-tric medicine practicing in the State of Colorado (collectively referred to in this opinion as doctors). The respondent, PHICO Insurance Co. (PHICO), is a medical malpractice insurance carrier owned by the Hospital Association of Pennsylvania (HAP).

PHICO was created in 1976 as a Pennsylvania malpractice insurer specializing in hospital coverage. In 1978, HAP decided to expand its programs and operations into states other than Pennsylvania, and to broaden its customer base to independent physicians.1 PHICO began marketing a elaims-made policy in Colorado in the spring of 1981 and sold its first independent physician policy here on February 1, 1982.

To properly approach this case, a basic understanding of the concepts relevant to claims-made insurance coverage is required. There are presently two basic types of professional liability insurance policies: claims-made and occurrence. See Regulation 5-1-8, 3 C.C.R. 702-5 (1992). A pure claims-made policy provides coverage for claims made during the policy period, regardless of when the events out of which the claim arose occurred.2 7A J. Appleman, Insurance Law and Practice § 4503, at 96 (Supp.1992). In contrast, an occurrence policy provides coverage for all “occurrences” which take place during a policy period, regardless of when the claim is made. Id.

Insureds who purchase claims-made policies can protect themselves against claims made after the policy terminates in one of two ways. One option is to obtain “prior acts” coverage. Under this option, the new insurer charges an additional premium to cover the insured for acts occurring before the inception date of the new policy. Insurers need not offer this coverage. Another option is to purchase extended reporting period, or “tail,” coverage. See Regulation 5-1-8, 3 C.C.R. 702-5 (1992). This coverage, which is usually available,3 is purchased from the first insurer and covers future claims made for incidents occurring during the time of the claims-made coverage. In effect, such coverage turns claims-made coverage into occurrence coverage.4

[1358]*1358When PHICO entered the Colorado market, most physicians were insured under occurrence policies and were reluctant to switch to claims-made policies. This reluctance stemmed, in part, from uncertainty concerning the cost of tail coverage. Many doctors testified that they feared the cost of tail coverage would be “unpredictably expensive,” and that “the insurance company would be able to create any number out of the air and say this is [what it’s] going to cost you to get out of the company.” To allay the doctors’ fears concerning the unpredictable cost of tail coverage, PHICO made numerous guarantees in its marketing. For example, Mr. Rodger Hasty, PHICO’s Regional Manager in Denver, wrote to a prospective insured on October 12, 1982, repeatedly emphasizing that PHICO offered a percentage “cap” on both claims-made policy and tail policy premiums. PHICO sent prospective insureds a letter dated April 25, 1983, containing similar assurances:

We have eliminated all of the “unknowns” in the purchase of a “tail” policy. Its cost is now as predictable as the occurrence rate. Each policy will contain an endorsement which guarantees the cost of the basic claims-made coverage, as a percentage of our occurrence rate, and the cost of a tail policy, as a percentage of our mature (4th year) claims-made rate in effect at the commencement of your current claims-made policy.

A further example can be found in a letter dated June 8,1983, from a PHICO agent to a physicians’ group. This letter promised that “[t]he tail charges are guaranteed in the policy and are in no way subject to underwriting whims.”

An endorsement to PHICO’s early policies provided that tail coverage would be available for 79 percent of the mature rate premium after one year of coverage with PHICO, 112 percent of the mature rate premium after two years of coverage, and 118 percent after the third and every subsequent year of coverage. Despite previous assurances that the percentage rates on tail policy premiums were “capped,” PHICO raised these rates on October 1, 1984. The new percentages, listed as an endorsement to the policy, were 89 percent of the mature premium rate after one year, 134 percent after the second year, and 140 percent after the third and every subsequent year.

This new endorsement also provided that “[t]ail policy premiums are percentages of the fourth-year premium in effect at the inception of the last policy period under the claims-made policy.” As part of its April 1, 1986 premium increase, however, PHICO changed the date from which the tail premium was determined from the premium in effect at the beginning of the last policy year, to the premium in effect at the inception of the tail policy.

Changes in the terms of PHICO’s tail policy coincided with changes occurring in PHI-CO’s business philosophy. PHICO experienced its first net loss in 1984, amounting to $20 million before discounting. As of November 1, 1984, PHICO ceased accepting new individual physician business altogether. In correspondence sent to policyholders in 1985, PHICO claimed that it took this action to ensure that PHICO would remain strong for its present insureds. In fact, PHICO had altered its business plan, and had shifted its emphasis from individual doctors to institutional insureds, i.e., hospitals, and had as one of its 1985 business plan goals the reduction of its individual physician policy count. This goal included a timetable: 190 fewer individual physician policies by March 31,1985; 310 by June 30; 810 by September 30; and 1,069 by the end of the year. The next year’s business plan also included a timetable for reducing the individual physician policy count: 50 fewer individual physician policies by January 31, 1986; 100 by the end of February; 175 through March; 250 through April; 325 through May; 400 through June; 575 through July; 650 through August; 725 through September; 800 through October; 875 through November; and 1000 by year’s end.

As the trial court noted, while PHICO’s financial position allegedly worsened, its representations of longevity and stability became “almost strident” in their frequency and intensity. The court of appeals likewise found that PHICO kept its aggressive campaign for new business intact, despite radical [1359]

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Bluebook (online)
875 P.2d 1354, 17 Brief Times Rptr. 1801, 1993 Colo. LEXIS 939, 1993 WL 467764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ballow-v-phico-insurance-co-colo-1993.