FIRST PROFESSIONAL INS. CO. v. McKinney

973 So. 2d 510, 2007 WL 4372744
CourtDistrict Court of Appeal of Florida
DecidedDecember 17, 2007
Docket1D06-6240
StatusPublished
Cited by13 cases

This text of 973 So. 2d 510 (FIRST PROFESSIONAL INS. CO. v. McKinney) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
FIRST PROFESSIONAL INS. CO. v. McKinney, 973 So. 2d 510, 2007 WL 4372744 (Fla. Ct. App. 2007).

Opinion

973 So.2d 510 (2007)

FIRST PROFESSIONALS INSURANCE COMPANY, INC., Appellant/Cross-Appellee,
v.
Barbara McKINNEY, M.D., Appellee/Cross-Appellee/Cross-Appellant.

No. 1D06-6240.

District Court of Appeal of Florida, First District.

December 17, 2007.
Rehearing Denied February 5, 2008.

*511 Shannon Kain and Dinah Stein, of Hicks & Kneale, P.A., Miami, for Appellant/Cross-Appellee.

Kelly B. Mathis and Marteal D. Lamb, of Mathis & Murphy, P.A., Jacksonville, for Appellee/Cross-Appellant.

BROWNING, C.J.

The trial court issued an order granting partial summary judgment in favor of Appellee/Cross-Appellant, Barbara, McKinney, M.D., and denied a motion for reconsideration filed by Appellant/Cross-Appellee, First Professionals Insurance Company, Inc. (FPIC). The final judgment awarded attorney's fees and costs to Dr. McKinney pursuant to section 627.428(1), Florida Statutes (2006), upon rendition of the judgment against the insurer under a policy executed by the insurer. In this appeal, FPIC contends that the lower tribunal erred as a matter of law in failing to grant summary final judgment in favor of FPIC on Dr. McKinney's claims for declaratory relief and breach of contract. Dr. McKinney cross-appeals the order on attorney's fees and costs, asserting that the trial court erred in failing to make specific findings regarding the amount of fees and costs awarded. Concluding that the trial court erred in determining that professional liability insurance policy # 33264 contains internally contradictory language and is ambiguous, such that it must be construed against FPIC, we reverse the final judgment and the award of "prevailing party" attorney's fees and costs and remand with instructions to the trial court to enter summary final judgment in favor of FPIC.

Dr. McKinney has worked as a parttime pathologist since completing her medical training. On several occasions, Dr. McKinney performed medical services for FPIC's insureds, Drs. Kim and Esfahani, at the Orange Park Medical Center. Whenever she substituted for Drs. Kim or Esfahani, Dr. McKinney would either work as a "locum tenens"—that is, a medical practitioner who temporarily takes the place of another doctor—as an additional insured on one of their insurance policies issued by FPIC, or obtain her own professional liability insurance policy directly from FPIC for the particular date(s) in question. The locum tenens acknowledgment between Drs. Kim and McKinney provided that Dr. McKinney would be an additional insured on Dr. Kim's policy for the date March 17, 2000. The substantially identical acknowledgment between Drs. Esfahani and McKinney provided that Dr. McKinney would be an additional insured on Dr. Esfahani's policy for the dates March 17, 30, and 31, 2000.

In correspondence sent by facsimile to FPIC, Dr. McKinney requested her own temporary professional liability coverage to work with Dr. Kim: specifically, daily *512 policy coverage for the dates March 30 and 31, 2000; and April 6, 12, 13, 17, 21, and 27, 2000. In further correspondence to FPIC, Dr. McKinney wrote: "I need short term insurance coverage for April 10, 2000 for Orange Park Medical Center working with Zoo E. Kim, M.D." Neither correspondence requested coverage for the date April 11, 2000. Responding to Dr. McKinney's request for coverage on April 10, 2000, FPIC issued her policy # 33264.

This written policy comprised approximately 15 pages and included an identifiable heading for each section. The front page of the policy booklet contained an instructional provision on how to read the policy, along with a provision directing the insured to the location of the coverage summary and an explanation of the contents of the coverage summary. Under subsection "B" of the section titled "Professional Liability Protection," the policy stated that it provided individual professional liability coverage for damages resulting from the provision of, or failure to provide, professional services to a patient. Subsection "D," titled "When You Are Covered," stated:

To be covered, the professional service must have been performed (or should have been performed) after the retroactive date shown on your Coverage Summary. The claim also must be first made while this policy is in effect.

Under "General Rules," subsection (5) is titled "Optional Extended Reporting Period (Tail)" and states in pertinent part:

When your coverage under this policy ends for any reason, you have the right to buy an optional extended reporting period endorsement commonly referred to as "tail coverage." The optional extended reporting period endorsement will allow you to report to us all valid claims. You may report claims which resulted from incidents that occurred subsequent to the retroactive date and prior to the expiration date of your Certificate.

Under "General Rules," subsection (12) is titled "Your Policy Period" and states in its entirety:

Your policy period begins at 12:01 a.m. standard time (at your address) on the date shown in the Coverage Summary. If this policy replaces policies ending at noon, rather than at 12:01 a.m., you will be covered starting at noon when coverage under the old policy ends. Your coverage is scheduled to end at 12:01 a.m., standard time, on the expiration date. If all or part of this policy is cancelled for any reason before that date, that coverage will end at 12:01 a:m. standard time on the cancellation date.

The "Coverage Summary" for policy # 33264 states in pertinent part: "Your policy begins 04/10/2000 and ends on 04/11/2000. Your retroactive date is 04/10/2000 for professional liability." An endorsement to the policy provided tail coverage, effective April 11, 2000. The endorsement stated, in relevant part:

WHEN YOU ARE COVERED
You may report claims which occurred between your retroactive date of April 10, 2000 and your termination date of April 11, 2000.

Around September 14, 2003, more than three years after Dr. Kim cancelled his FPIC insurance policy and subsequent to Dr. Esfahani's cancellation and/or non-renewal of his FPIC insurance policy, Dr. McKinney was served with a Notice of Intent to Initiate Litigation for Medical Malpractice on behalf of Rebecca Carawon. The notice alleged that medical care provided to Mrs. Carawon by Drs. Kim and McKinney on April 14, 1998; April 22, 1999; March 16, 2000; and April 11, 2000, fell below the acceptable standard of care. *513 Mrs. Carawon specifically alleged that Dr. McKinney had examined a specimen from her breast on March 16, 2000; April 11, 2000; and August 7, 2001, and had misdiagnosed breast cancer based on the examinations that occurred on those particular dates.

Upon receipt of this notice of intent, Dr. McKinney communicated Mrs. Carawon's claim to FPIC and sought to invoke cover age under policy # 33264 for the treatment date April 11, 2000. Initially, FPIC provided a defense for Dr. McKinney during its investigation of the dates of Mrs. Carawon's treatment. After determining that no coverage existed under policy # 33264 for the date April 11, 2000, FPIC withdrew its defense. The instant coverage action followed.

Dr. McKinney filed a two-count complaint against FPIC claiming breach of contract and seeking declaratory relief. Dr. McKinney alleged that FPIC, as her insurance carrier, had a duty to provide coverage as a result of a claim for medical malpractice made against her. The complaint sought a declaratory judgment for coverage and damages for breach of contract based on policy # 33264 (issued directly to Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
973 So. 2d 510, 2007 WL 4372744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-professional-ins-co-v-mckinney-fladistctapp-2007.