UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
General Star Indemnity Co.
v.
Adam P. Beck, M.D., et al. Civil No. 18-cv-108-JD Opinion No. 2018 DNH 165 v.
General Star Indemnity Co. et al
O R D E R
General Star Indemnity Company brought a declaratory
judgment action, seeking a determination that it may rescind the
liability insurance policy issued to Adam P. Beck, M.D. or in
the alternative that there is no coverage under the policy.
General Star also named Beck’s company, New England Eye
Specialists, P.C., James F. Kelly, Goldie Morrow, John Morrow,
and David Dennis as defendants because the company, along with
Beck, is seeking insurance coverage for claims made by Kelly,
the Morrows, and Dennis. Beck, proceeding pro se, brought
counterclaims against General Star and others, and then amended
the counterclaims. Counsel has now entered an appearance on
behalf of Beck and New England Eye Specialists, P.C.
General Star moves to dismiss Counts III, IV, V, VI, VII,
and IX of the counterclaim in Beck’s amended answer. Beck did not file a response to the motion to dismiss within the time
allowed.
Standard of Review
In considering a motion to dismiss, the court accepts all
well-pleaded facts as true, disregarding mere legal conclusions,
and resolves reasonable inferences in the plaintiff’s favor.1
Galvin v. U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017).
Taken in that light, the complaint must state sufficient facts
to support a plausible claim for relief. In re Curran, 855 F.3d
19, 25 (1st Cir. 2017). The plausibility standard is satisfied
if the factual allegations in the complaint “are sufficient to
support the reasonable inference that the defendant is liable.”
In re Fidelity ERISA Float Litig., 829 F.3d 55, 59 (1st Cir.
2016) (internal quotation marks omitted). The complaint need
not include “a high degree of factual specificity” but “must
contain more than a rote recital of the elements of a cause of
action.” Carcia-Catalan v. United States, 734 F.3d 100, 103
(1st Cir. 2013) (internal quotation marks omitted).
1 General Star filed its answer to the counterclaim on the same day that it filed the motion to dismiss. Because the answer has been filed, the motion should have been for judgment on the pleadings under Rule 12(c). Nevertheless, because the same standard applies under Rule 12(b)(6) and Rule 12(c), the court proceeds to consider the motion. Kando v. R.I. St. Bd. Of Elections, 880 F.3d 53, 58 (1st Cir. 2018).
2 Background
During the events at issue in the case, Adam Beck was a
licensed medical doctor with a specialty in ophthalmology. New
England Eye Specialists, PC, was his professional corporation.
General Star was an insurance company, authorized to do business
in New Hampshire.
General Star issued a Physicians & Surgeons Professional
Liability Insurance Policy to Beck based on his application and
supporting statement dated July 31, 2017. General Star contends
that Beck made material misrepresentations in his application
and supporting statement because he did not disclose that a
complaint with the New Hampshire Board of Medicine by Doris
Newell or another patient remained open and that a complaint had
been filed against him by James Kelly. He also did not disclose
that a lawyer, on behalf of two of his patients Goldie Morrow
and David Dennis, had requested medical records.
After General Star issued the policy, medical malpractice
actions were brought against Beck on behalf of Morrow, Dennis,
and Kelly. Beck also entered a settlement agreement with the
New Hampshire Board of Medicine with regard to either Newell’s
complaint or another patient’s complaint.2 General Star seeks
2 The settlement agreement does not name the female patient who made the complaint.
3 rescission of the policy, or alternatively, a declaratory
judgment that there is no coverage for the actions against Beck.
In his amended answer, Beck alleges that he has paid his
premiums for the coverage in the General Star policy. Beck
notified General Star of the underlying lawsuits brought by
Morrow, Dennis, and Kelly. General Star has refused to provide
coverage for those suits.
Beck alleges eight counts in his counterclaim brought
against General Star Indemnity Company, General Star Management
Company, General Star Corporation, General Star LLC, General
Star National Insurance Company, General Star Start LLC, and
individuals identified as directors of General Star.3 Beck
identifies the defendants collectively as General Star,
indicating that he did not intend to bring claims against the
listed defendants individually.
In Count I he seeks a declaratory judgment that General
Star is obligated to provide a defense in the underlying
lawsuits, and in Count II he alleges that General Star has
breached its duty to defend. Count III is titled “Negligence”
but also allege defamation and includes citations to New
Hampshire and Massachusetts statutes, along with the Health
Insurance Portability and Accountability Act (“HIPAA”). In
3 The counts in the counterclaim are numbered I, II, III, IV, V, VI, VII, and IX. There is no Count VIII.
4 Count IV, Beck alleges violation of the New Hampshire Consumer
Protection Act but also lists other New Hampshire statutes, and
in Count V, he alleges violation of the Massachusetts Consumer
Protection Act. Count VI is titled “Libel and Defamation,” and
Count VII is titled “False Light,” but include citations to
state statutes and HIPAA. There is no Count VIII. Count IX is
a claim for intentional infliction of emotional distress, but
also cites a string of New Hampshire and Massachusetts statutes.
Discussion
and IX for failure to state a claim.4 In support of the motion
to dismiss, General Star contends that the claims in Counts III,
VI, VII, and IX are based on theories that Beck was defamed by
General Star based on statements made in the General Star’s
amended complaint. General Star interprets Counts III, IV, and
V to allege that it violated Massachusetts and New Hampshire
statutes by failing to provide services and to provide coverage
to Beck. Beck did not file a response to the motion to dismiss.5
4 As is noted above, although Beck lists other defendants along with General Star, his counterclaim is construed to bring claims against General Star, not the listed defendants individually.
5 Although Beck was initially proceeding pro se, he is now represented by counsel. Counsel did not file any response on Beck’s behalf or request an extension of time to do so.
5 I. Applicable Law
Beck alleges claims under both New Hampshire and
Massachusetts law. General Star asserts that New Hampshire law
governs the claims in the case because all three of the
underlying suits against Beck were or will be filed in New
Hampshire and those complaints are directed to Beck at his New
Hampshire address.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
General Star Indemnity Co.
v.
Adam P. Beck, M.D., et al. Civil No. 18-cv-108-JD Opinion No. 2018 DNH 165 v.
General Star Indemnity Co. et al
O R D E R
General Star Indemnity Company brought a declaratory
judgment action, seeking a determination that it may rescind the
liability insurance policy issued to Adam P. Beck, M.D. or in
the alternative that there is no coverage under the policy.
General Star also named Beck’s company, New England Eye
Specialists, P.C., James F. Kelly, Goldie Morrow, John Morrow,
and David Dennis as defendants because the company, along with
Beck, is seeking insurance coverage for claims made by Kelly,
the Morrows, and Dennis. Beck, proceeding pro se, brought
counterclaims against General Star and others, and then amended
the counterclaims. Counsel has now entered an appearance on
behalf of Beck and New England Eye Specialists, P.C.
General Star moves to dismiss Counts III, IV, V, VI, VII,
and IX of the counterclaim in Beck’s amended answer. Beck did not file a response to the motion to dismiss within the time
allowed.
Standard of Review
In considering a motion to dismiss, the court accepts all
well-pleaded facts as true, disregarding mere legal conclusions,
and resolves reasonable inferences in the plaintiff’s favor.1
Galvin v. U.S. Bank, N.A., 852 F.3d 146, 155 (1st Cir. 2017).
Taken in that light, the complaint must state sufficient facts
to support a plausible claim for relief. In re Curran, 855 F.3d
19, 25 (1st Cir. 2017). The plausibility standard is satisfied
if the factual allegations in the complaint “are sufficient to
support the reasonable inference that the defendant is liable.”
In re Fidelity ERISA Float Litig., 829 F.3d 55, 59 (1st Cir.
2016) (internal quotation marks omitted). The complaint need
not include “a high degree of factual specificity” but “must
contain more than a rote recital of the elements of a cause of
action.” Carcia-Catalan v. United States, 734 F.3d 100, 103
(1st Cir. 2013) (internal quotation marks omitted).
1 General Star filed its answer to the counterclaim on the same day that it filed the motion to dismiss. Because the answer has been filed, the motion should have been for judgment on the pleadings under Rule 12(c). Nevertheless, because the same standard applies under Rule 12(b)(6) and Rule 12(c), the court proceeds to consider the motion. Kando v. R.I. St. Bd. Of Elections, 880 F.3d 53, 58 (1st Cir. 2018).
2 Background
During the events at issue in the case, Adam Beck was a
licensed medical doctor with a specialty in ophthalmology. New
England Eye Specialists, PC, was his professional corporation.
General Star was an insurance company, authorized to do business
in New Hampshire.
General Star issued a Physicians & Surgeons Professional
Liability Insurance Policy to Beck based on his application and
supporting statement dated July 31, 2017. General Star contends
that Beck made material misrepresentations in his application
and supporting statement because he did not disclose that a
complaint with the New Hampshire Board of Medicine by Doris
Newell or another patient remained open and that a complaint had
been filed against him by James Kelly. He also did not disclose
that a lawyer, on behalf of two of his patients Goldie Morrow
and David Dennis, had requested medical records.
After General Star issued the policy, medical malpractice
actions were brought against Beck on behalf of Morrow, Dennis,
and Kelly. Beck also entered a settlement agreement with the
New Hampshire Board of Medicine with regard to either Newell’s
complaint or another patient’s complaint.2 General Star seeks
2 The settlement agreement does not name the female patient who made the complaint.
3 rescission of the policy, or alternatively, a declaratory
judgment that there is no coverage for the actions against Beck.
In his amended answer, Beck alleges that he has paid his
premiums for the coverage in the General Star policy. Beck
notified General Star of the underlying lawsuits brought by
Morrow, Dennis, and Kelly. General Star has refused to provide
coverage for those suits.
Beck alleges eight counts in his counterclaim brought
against General Star Indemnity Company, General Star Management
Company, General Star Corporation, General Star LLC, General
Star National Insurance Company, General Star Start LLC, and
individuals identified as directors of General Star.3 Beck
identifies the defendants collectively as General Star,
indicating that he did not intend to bring claims against the
listed defendants individually.
In Count I he seeks a declaratory judgment that General
Star is obligated to provide a defense in the underlying
lawsuits, and in Count II he alleges that General Star has
breached its duty to defend. Count III is titled “Negligence”
but also allege defamation and includes citations to New
Hampshire and Massachusetts statutes, along with the Health
Insurance Portability and Accountability Act (“HIPAA”). In
3 The counts in the counterclaim are numbered I, II, III, IV, V, VI, VII, and IX. There is no Count VIII.
4 Count IV, Beck alleges violation of the New Hampshire Consumer
Protection Act but also lists other New Hampshire statutes, and
in Count V, he alleges violation of the Massachusetts Consumer
Protection Act. Count VI is titled “Libel and Defamation,” and
Count VII is titled “False Light,” but include citations to
state statutes and HIPAA. There is no Count VIII. Count IX is
a claim for intentional infliction of emotional distress, but
also cites a string of New Hampshire and Massachusetts statutes.
Discussion
and IX for failure to state a claim.4 In support of the motion
to dismiss, General Star contends that the claims in Counts III,
VI, VII, and IX are based on theories that Beck was defamed by
General Star based on statements made in the General Star’s
amended complaint. General Star interprets Counts III, IV, and
V to allege that it violated Massachusetts and New Hampshire
statutes by failing to provide services and to provide coverage
to Beck. Beck did not file a response to the motion to dismiss.5
4 As is noted above, although Beck lists other defendants along with General Star, his counterclaim is construed to bring claims against General Star, not the listed defendants individually.
5 Although Beck was initially proceeding pro se, he is now represented by counsel. Counsel did not file any response on Beck’s behalf or request an extension of time to do so.
5 I. Applicable Law
Beck alleges claims under both New Hampshire and
Massachusetts law. General Star asserts that New Hampshire law
governs the claims in the case because all three of the
underlying suits against Beck were or will be filed in New
Hampshire and those complaints are directed to Beck at his New
Hampshire address. As such, the insurance risks involved are in
New Hampshire.
In addition, Morrow and Dennis are residents of New
Hampshire, while Kelly is a resident of Missouri. Beck applied
for coverage for New England Eye & Facial Specialists in
Londonderry, New Hampshire, along with coverage for himself at
his address in Andover, Massachusetts. Beck indicated on his
insurance application that he was licensed to practice in New
Hampshire and Massachusetts.
Before undertaking a choice of law analysis, the court
first inquires as to whether the law of interested jurisdictions
actually conflict, that is, whether the outcome would be changed
by application of the law of a state other than the forum state.
A.M. Capen’s Co. v. Am. Trading & Prod. Corp., 202 F.3d 469, 472
n.6 (1st Cir. 2000). The party who relies on the law of another
state bears the burden of showing its content. Aftokinito
Props., Inc. v. Millbrook Ventures, LLC¸ 2010 WL 3168295, at *3
(D.N.H. Aug. 9, 2010).
6 Here, Beck cites both New Hampshire and Massachusetts law
without suggesting that any conflict exists between them that
would result in different outcomes. Because he did not respond
to the motion to dismiss, Beck provided no support for his
reliance on Massachusetts law. Therefore, in the absence of a
demonstrated conflict, the court will apply the law of New
Hampshire.6
II. Counterclaim
Beck alleges statutory and common law claims. Because New
Hampshire law applies, Count V, which is entirely based on
Massachusetts law, along with those parts of the other claims
that are based on Massachusetts law, are dismissed.
6Even if the court were to undertake a choice-of-law analysis, it would apply the law of New Hampshire. Federal courts sitting in diversity jurisdiction, apply the choice-of-law rules of the forum state, which is New Hampshire here. Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Generally, if the relevant substantive law of another state with substantial interests in the litigation conflicts with New Hampshire law, the court applies a five-factor test to determine which law applies. TIG Ins. Co. v. Eiflow Ins. Ltd., 2015 WL 5714686, at *4 (D.N.H. Sept. 29, 2015). In cases where a contract such as an insurance policy is at issue, “‘the law of the State with the most significant relationship to the contract will govern questions regarding the contract’s performance.’” Id. (quoting Glowski v. Allstate Ins. Co., 134 N.H. 196, 197-98 (1991)). All of the considerations applicable to the choice-of- law analysis support applying New Hampshire law in this case.
7 A. Claims Based on New Hampshire Statutes
In Counts III and IV, Beck alleges that General Star
violated RSA chapter 358-A, RSA chapter 417, RSA chapter 541,
RSA chapter 541-A, and RSA chapter 400-A through 420-J by
failing to offer him malpractice insurance coverage going
forward and for his prior acts. As General Star points out, the
insurance industry is excluded from the New Hampshire Consumer
Protection Act. RSA 358-A:3, I. Under RSA chapter 417, a
plaintiff can bring suit only after the insurance commissioner
has determined that an insurance company’s practice violates the
chapter, and Beck does not allege such a finding here. RSA
417:19, I; U.S. Bank, Nat’l Ass’n v. Foremost Ins. Co., 2017 WL
2592420, at *3 (D.N.H. June 14, 2017). As General Star
explains, neither RSA chapter 541 nor RSA chapter 541-A, which
govern administrative procedures, apply to the circumstances
alleged here.
RSA chapter 400-A through RSA chapter 420-J are statutes
governing all aspects of the business of insurance, including
procedures for the insurance department and a myriad of other
areas of regulation. Beck alleges that General Star violated
all of the statutes by failing to provide insurance services as
advertised and by defaming him with allegations in the amended
complaint. As General Star contends, those allegations are not
sufficiently specific to state a plausible claim for relief.
8 Therefore, all claims based on RSA chapter 400-A through RSA
chapter 420-J are dismissed.
B. HIPAA
In Counts III, VI, and VII, Beck mentions HIPAA, without
citing any specific provision. Beck has not alleged that
General Star is a covered entity under HIPAA, and it asserts
that it is not. HIPAA applies in certain situations to health
plans, health care clearing houses, healthcare providers, and
business associates of covered entities. See 45 C.F.R.
§ 160.103; § 164.104. In addition, as General Star asserts,
courts that have considered the issue have found that no private
right of action exists under HIPAA. See Carpenter v. Arredondo,
714 Fed. Appx. 416, 417 (5th Cir. 2018); Bond v. Conn. Bd. Of
Nursing, 622 Fed. Appx. 43, n. 2 (2d Cir. 2015) (citing cases).
Therefore, all claims based on a violation of HIPAA are
dismissed.
C. Libel, Defamation, False Light, Intentional Infliction
of Emotional Distress
In Counts III, VI, VII, and IX, Beck alleges that General
Star published false and defamatory statements about him in the
amended complaint. Specifically, Beck objects to allegations
that he misrepresented the status of Newell’s complaint to the
New Hampshire Board of Medicine or failed to disclose another
9 complaint that was then pending before the New Hampshire Board
of Medicine. Beck also objects to the allegation that he
entered into a settlement agreement with the Board of Medicine
that addressed either the Newell complaint or a complaint by
another patient.7
As General Star asserts, allegations made in pleadings
filed with a court, which are pertinent to the proceedings, are
absolutely privileged and cannot be the basis for a civil suit.
Provencher v. Buzzell-Plourde Assocs, 142 N.H. 848, 853 (1998);
McGranahan v. Dahar, 119 N.H. 758, 763 (1979). The statements
about Beck’s misrepresentations to General Star in his
application for insurance are pertinent to General Star’s suit
to rescind the policy based on those misrepresentations.
Therefore, the statements are absolutely privileged.
In addition, claims for defamation, libel, and false light
all require as an element that the challenged statement be
false. See Vention Med. Advanced Components, Inc. v. Pappas, --
- A.3d ---, 2018 WL 2905593, at *5 (N.H. June 8, 2018)
(defamation); Thomas v. Tel. Publ’g Co., 155 N.H. 314, 321
(2007) (defamation and libel); Hamberger v. Eastman, 106 N.H.
107, 111 (1964) (false light). Based on the settlement
agreement filed with the amended complaint, the allegations in
7 General Star submitted a copy of the settlement agreement with its amended complaint.
10 the amended complaint appear to be true. Counts VI and VII are
dismissed. To the extent Counts III and IX are based on
theories of defamation, libel, or false light, they are also
D. Negligence
To state a claim for negligence, a plaintiff must allege
that the defendant owed him a duty, breached that duty, and that
the breach caused the plaintiff harm. Yager v. Clauson, 169
N.H. 1, 5 (2016). Beck alleges that General Star had a duty to
defend him in the underlying lawsuits and to provide him with
malpractice insurance and that General Star negligently failed
to do so. As explained above, the cited statutes do not impose
those duties. Beck has not alleged a duty to support his
negligence claim in Count III, which is dismissed.
E. Intentional Infliction of Emotional Distress
To state a claim for intentional infliction of emotional
distress, a plaintiff must allege facts to show that the
defendant “‘by extreme and outrageous conduct, intentionally or
recklessly cause[d] severe emotional distress to another.’”
Saunders v. First Magnus Fin. Corp., 2018 DNH 145, 2018 WL
3432721, at *5 (D.N.H. July 16, 2018) (quoting Morancy v.
Morancy, 134 N.H. 493, 496 (1991). To meet that standard, the
accused conduct must have been “‘so outrageous in character, and
11 so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.’” Id. (quoting Mikell v.
Sch. Admin. Unit No. 33, 158 N.H. 723, 729 (2009)).
Beck alleges a claim for intentional infliction of
emotional distress in Count IX based on General Star’s
allegations in the amended complaint, which he contends were
defamatory and libelous. As is explained above, those
statements are absolutely privileged. In addition, even if they
were not, they would not provide grounds for a claim of
intentional infliction of emotional distress because General
Star alleges what is shown in the settlement agreement between
Beck and the New Hampshire Board of Medicine. Therefore, Count
IX is dismissed.
Conclusion
For the foregoing reasons, General Star’s motion to dismiss
(document no. 35) is granted. Counts III, IV, V, VI, VII, and
IX in Beck’s amended counterclaim are dismissed. The claims
remaining in the amended counterclaim are Counts I and II.
SO ORDERED
______________________________ Judge Joseph A. DiClerico, Jr. United States District Judge August 13, 2018 cc: William J. Amann, Esq. Christopher T. Conrad, Esq.
12 Sabina B. Danek, Esq. Richard E. Fradette, Esq. Mark L. Mallory, Esq. Kenneth D. Murphy, Esq. David A. Wilford, Esq.