Case v. Louisiana Medical Mut. Ins. Co.

624 So. 2d 1285, 1993 La. App. LEXIS 2928, 1993 WL 394589
CourtLouisiana Court of Appeal
DecidedOctober 6, 1993
Docket92-1421
StatusPublished
Cited by17 cases

This text of 624 So. 2d 1285 (Case v. Louisiana Medical Mut. Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Case v. Louisiana Medical Mut. Ins. Co., 624 So. 2d 1285, 1993 La. App. LEXIS 2928, 1993 WL 394589 (La. Ct. App. 1993).

Opinion

624 So.2d 1285 (1993)

Mary CASE, et al., Plaintiffs-Appellants,
v.
LOUISIANA MEDICAL MUTUAL INSURANCE COMPANY, et al., Defendants-Appellees.

No. 92-1421.

Court of Appeal of Louisiana, Third Circuit.

October 6, 1993.

*1286 Christopher J. Roy, Alexandria, for Mary Case et al.

Robert L. Redfearn, New Orleans, Victor Herbert Sooter, Alexandria, Joseph Thomas Hamrick, Jr., New Orleans, for Louisiana Medical Mut. Ins. Co., et al.

Ambrose K. Ramsey, III, Metairie, for State, Com'r of Ins.

Before GUIDRY, THIBODEAUX and COOKS, JJ.

COOKS, Judge.

This is a medical malpractice suit alleging on September 26, 1986 Dr. Walter E. Deacon, II, an orthopedic surgeon, negligently severed the ulna and radial nerves in Mary Case's thumb. At issue is whether the trial court properly granted summary judgment in favor of Louisiana Medical Mutual Insurance Company (LAMMICO) finding a policy of malpractice insurance provided by it to Dr. Deacon did not cover the alleged act of malpractice because the incident was not reported during the policy's effective period. We affirm the judgment.

PROCEDURAL HISTORY

On September 25, 1987 Mary Case and her husband filed claims with the Commissioner of Insurance against Dr. Walter E. Deacon, II and Woodview Regional Hospital citing the alleged act of malpractice which occurred on September 26, 1986. The Commissioner of Insurance acknowledged receipt of the complaint noting the policy period extended from July 1, 1986 to July 1, 1987 and further advised that "Dr. Deacon has a reporting endorsement from LAMMICO covering him for any accident occurring while he had coverage with LAMMICO."[1] According to the record, Dr. Deacon filed a voluntary bankruptcy petition on November 5, 1987 listing Mary Case as a creditor and providing the name and address of her attorney for inclusion on the mailing matrix. Notice of the bankruptcy proceeding was forwarded to Mary Case's attorney on November 2, 1987. The creditors initially were advised "no assets" existed in Dr. Deacon's bankruptcy case. Subsequently, Dr. Deacon was judged entitled to a Chapter 7 discharge pursuant to the United States' Bankruptcy Code. Later, the parties were notified that the trustee had discovered assets, unknown previously, which may result in a distribution to creditors. In accordance with the notice instructions, appellants filed a proof of claim form with the United States Bankruptcy Court specifying the alleged act of malpractice committed by Dr. Deacon.

On March 11, 1988, appellants' counselor addressed a letter to LAMMICO requesting that the company designate an attorney representative to defend the claims pending before the Commissioner of Insurance. On March 24, 1988, LAMMICO responded stating the policy it issued to Dr. Deacon did not cover the alleged act of malpractice. On May 12, 1988, the Commissioner of Insurance addressed a letter to appellants' attorney advising:

"In our letter of September 25, 1987 we indicated that Dr. Deacon had purchased a *1287 reporting endorsement from Lammico which entitled him to protection under Act 817.
We have since been advised by Lammico that the defendant was given a quote for the tail but did not purchase the reporting endorsement.
Based on this information we are amending Dr. Deacon's status to `NOT QUALIFIED' and notifying him and all involved parties of this amendment."

On the same date, appellants filed the present suit alleging in material part that LAMMICO's failure to promptly dispute coverage caused them, detrimentally, to rely on the existence of coverage; and, thus, "as a matter of law," this failure compounded by the incorrect information received from the Commissioner of Insurance's office somehow creates a "new claim" against LAMMICO and Dr. Deacon, in solido, for the damages resulting from the alleged act of malpractice.

Against LAMMICO, the suit essentially rested on two theories of liability. The first theory suggested as a consequence of LAMMICO's failure to promptly disclose the absence of coverage, it should be estopped from now denying the existence of coverage. The second theory is more amorphous in nature. It poses (without articulating a firm legal basis) that LAMMICO, as a result of its inaction, pure and simple should be held liable in solido with Dr. Deacon for the harm allegedly occasioned by his negligence. By later amendment, the suit named the State of Louisiana, through the Commissioner of Insurance, as a defendant alleging the erroneous coverage information forwarded to appellants by the Commissioner caused them to forego intervening in Dr. Deacon's pending bankruptcy proceeding; and, as a further result, they sustained injury.

On September 20, 1990, LAMMICO filed a motion for summary judgment contending no genuine issues of material facts existed and as a matter of law it was entitled to judgment dismissing appellants' claims. Attached to the motion was an affidavit from Mr. Henry J. Jumonville, III, LAMMICO's executive vice president, attesting that a true copy of the insurance policy issued to Dr. Deacon was attached reflecting its coverage period from August 1, 1986 to July 1, 1987 and that the policy was canceled effective June 1, 1987 as orally requested by Dr. Deacon and evidenced by Dr. Deacon's letter written on July 31, 1987 requesting an invoice for "tail coverage" through the period of his practice in Louisiana. The affidavit further stated Dr. Deacon did not purchase any tail coverage following this communication. On the policy's face clearly appears the wording "claims made" and a declaration to the effect that it was "written in a CLAIMS MADE form." Responding to the summary judgment motion, appellants raised a hodgepodge of liability theories arguably supporting their claims against LAMMICO, including the following that: (1) No evidence existed to show that Dr. Deacon did not submit a claim to LAMMICO resulting from the alleged act of malpractice prior to the policy's termination; and, (2) at the time Dr. Deacon first applied for malpractice insurance with LAMMICO, it forwarded to him a Prospectus reflecting that the company was offering Dr. Deacon an "occurrence policy;" and, as a result of this representation, the Prospectus language should supersede the "claims made" expression of coverage clearly appearing on the face of subsequent policies issued to Dr. Deacon. Following hearing, the trial judge, in written reasons, denied the motion and noted:

"The Court finds that summary judgment is inappropriate because there exists a genuine issue as to a material fact, specifically whether a claim was made to LAMMICO, the insurer of Dr. Walter E. Deacon, during the effective period of the insurance policy. The movant's affidavit filed in this matter does not state that a claim was not made against LAMMICO during the period the policy was in effect." (Emphasis Added)

LAMMICO filed a second motion for summary judgment again asserting no genuine issue of material facts existed and attached a supplemental affidavit from Mr. Jumonville stating, in pertinent part, the following:

"LAMMICO received its first written communication regarding a claim on behalf of Mary A. Case on October 5, 1987, following her filing of a complaint with the *1288 Commissioner of Insurance Office ("Complaint") on September 26, 1987.
Prior to filing of the Complaint, LAMMICO received no written communication whatsoever from Dr.

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Bluebook (online)
624 So. 2d 1285, 1993 La. App. LEXIS 2928, 1993 WL 394589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/case-v-louisiana-medical-mut-ins-co-lactapp-1993.