Lynch-Ballard v. LAMMICO Insurance Agency, Inc.

176 So. 3d 651, 14 La.App. 5 Cir. 793, 2015 La. App. LEXIS 1827, 2015 WL 5613317
CourtLouisiana Court of Appeal
DecidedSeptember 23, 2015
DocketNo. 14-CA-793
StatusPublished

This text of 176 So. 3d 651 (Lynch-Ballard v. LAMMICO Insurance Agency, Inc.) 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
Lynch-Ballard v. LAMMICO Insurance Agency, Inc., 176 So. 3d 651, 14 La.App. 5 Cir. 793, 2015 La. App. LEXIS 1827, 2015 WL 5613317 (La. Ct. App. 2015).

Opinion

HANS J. LILJEBERG, Judge.

^Plaintiff appeals the trial court’s judgment rendered on July 28, 2014, which dismissed plaintiffs claims against the remaining defendant in this matter. For the following reasons, we affirm.

[653]*653 FACTS AND PROCEDURAL HISTORY

Plaintiff, Eileen Clare Lynch-Ballard, is a physician who was employed by Correct Care, Inc. (“Correct Care”) and working in the emergency room at East Carroll Parish Hospital in January of 2008. Dr. Lynch-Ballard’s employment with Correct Care terminated on June 21, 2008. On December 16, 2008, a medical malpractice complaint was filed against Dr. Lynch-Ballard and East Carroll Parish Hospital, alleging that on January 26, 2008, Dr. Lynch-Ballard committed medical malpractice during her treatment of a patient, William Fautheree, resulting in the loss of his leg and his subsequent death.1

Correct Care had in effect a professional liability insurance policy with Louisiana Medical Mutual Insurance Company (“LAMMICO”), which included | sDr. Lynch-Ballard as an additional insured. Pursuant to the terms of the insurance policy, LAMMICO retained an attorney, F. William Sartor, to represent Dr. Lynch-Ballard in the medical review panel proceedings.

On August 16, 2009, while the medical review panel proceedings were pending, the Louisiana State Board of Medical Examiners (“LSBME”) suspended Dr. Lynch-Ballard’s medical license indefinitely, finding that she failed to meet, the appropriate standard of care in her treatment of Mr. Fautheree and another patient. Based on the suspension of Dr. Lynch-Ballard’s license, as well as his own evaluation of the medical malpractice claim against Dr. Lynch-Ballard, Mr. Sartor believed that the case against her was “indefensible,” and he recommended that the matter be settled.

Although Dr. Lynch-Ballard opposed settlement, Correct Care and LAMMICO wanted to settle the case with the Fauth-eree claimants. A settlement agreement was reached,- under which LAMMICO would pay $90,000 on behalf of Dr. Lynch-Ballard and Correct Care, with the Fauth-eree claimants reserving their right to proceed against the Louisiana Patient’s Compensation Fund (“PCF”) for additional recovery. In January of 2010, LAMMI-CO reported the settlement to the National Practitioner Data Bank (“NPDB”), as required by, federal law. In the report, LAMMICO indicated that the. settlement was reached on December 18, 2009.

In January of 2010, Dr. Lynch-Ballard was notified in writing of the settlement. She contacted LAMMICO to voice her objection to the settlement,' asserting that the case was improperly settled without her consent and that the settlement damaged her reputation. She further demanded that her name be excluded from the settlement documents. On January 20, 2010, Mr. Sartor wrote to the attorney for the Fautheree claimants, John Hammons, and informed him that |4Pr. Lynch-Ballard’s name should be excluded, from the settlement documents. However, shortly thereafter, LAMMICO representatives instructed Mr. Sartor that the settlement documents had to include Dr. Lynch-Ballard’s name as a released party, because she was an insured under the LAMMICO policy.

In February of 2010, the Director of Claims for LAMMICO, Ross McBryde, emailed Dr. Lynch-Ballard to explain LAMMICO’s reasons for the settlement and to inform her that the insurance policy did not require her consent to settle after her employment with Correct Care ended. [654]*654In August of 2010, the PCF settled with the Fautheree claimants for $360,000, and the settlement was reported to the NPDB.

On December 15, 2011, Dr. Lynch-Ballard filed the present lawsuit against LAMMICO, Mr. Sartor, and his law firm, Nelson, Zentner, Sartor & Snellings, L.L.C., alleging fraud and asserting several causes of action, including breach of contract, various tort claims, and legal malpractice.2 In her petition, among other claims, Dr. Lynch-Ballard asserted that LAMMICO breached its contractual obligations under the insurance policy by settling the case without her permission and including her name in the settlement documents, despite LAMMICO’s agreement not to include her name. She further claimed that LAMMICO breached its contractual obligations by failing to secure, or to advise her to obtain, separate counsel before settling the case on her behalf without her consent. Dr. Lynch-Ballard also alleged that she suffered mental anguish, loss of earnings, and loss of reputation due to LAMMICO’s reporting of the settlement to the NPDB.

On September 26, 2012, LAMMICO filed a “Peremptory Exception of Prescription, Peremptory Exception of No Cause of Action, and/or Motion for Summary Judgment.” In its pleading, LAMMICO asserted that Dr. Lynch-pBallard’s breach of contract claims should be dismissed, because under the terms of the insurance policy, LAMMICO was not required to obtain her consent to settle the claim after she was no longer employed by Correct Care and was not an insured under the policy. LAMMICO further asserted that Dr. Lynch-Ballard’s claims against it for damages resulting from LAMMICO’s inclusion of her name in the settlement documents and report of the settlement to the NPDB were barred by federal law. Finally, LAMMICO asserted that Dr. Lynch-Ballard’s tort claims had prescribed, because she filed this lawsuit more than one year after she became aware of the alleged tortious conduct.

After a hearing on January 24, 2013, the trial court rendered a judgment, granting LAMMICO’s motion for summary judgment and its exceptions of no right of action and prescription. Dr. Lynch-Ballard filed an appeal from this judgment. On November 19, 2013, this Court dismissed the appeal due to lack of appellate jurisdiction, finding that the judgment was not final because it did not dispose of all of Dr. Lynch-Ballard’s claims against LAM-MICO. This Court specifically indicated that the judgment did not dispose of Dr. Lynch-Ballard’s claim that LAMMICO breached the agreement to exclude her name from the settlement documents, or her claim that LAMMICO failed to secure, or advise her to obtain, separate counsel before settling her claims without her consent. This Court remanded the case to the trial court for further proceedings.

On remand, LAMMICO filed a “Peremptory Exception of No Right of Action and/or Motion for Summary Judgment,” seeking dismissal of the remaining claims against it. LAMMICO asserted that it had no obligation to retain separate counsel to represent Dr. Lynch-Ballard because it was not required to obtain her consent before settling the case. LAMMI-CO further alleged that there was no | (¡evidence to establish any agreement between LAMMICO and Dr. Lynch-Ballard to exclude her name from the settlement documents.

After a hearing on July 28, 2014, the trial court rendered a judgment in favor of [655]*655LAMMICO, granting its exceptions of no right of action and no cause of action, granting its motion for summary judgment, and dismissing all of Dr. LynchBal-lard’s claims against LAMMICO with prejudice. Dr. Lynch-Ballard appeals.

LAW AND DISCUSSION

On appeal, Dr. Lynch-Ballard asserts seven assignments of error. In her first assignment of error, she argues that the trial court erred in its finding that LAM-MICO did not breach its contractual duty to her by settling on her behalf without her consent.

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176 So. 3d 651, 14 La.App. 5 Cir. 793, 2015 La. App. LEXIS 1827, 2015 WL 5613317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-ballard-v-lammico-insurance-agency-inc-lactapp-2015.