Med. Protective Co. of Fort Wayne v. Am. Int'l Specialty Lines Ins. Co.

911 F.3d 438
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 18, 2018
DocketNo. 18-1737
StatusPublished
Cited by39 cases

This text of 911 F.3d 438 (Med. Protective Co. of Fort Wayne v. Am. Int'l Specialty Lines Ins. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Med. Protective Co. of Fort Wayne v. Am. Int'l Specialty Lines Ins. Co., 911 F.3d 438 (7th Cir. 2018).

Opinion

St. Eve, Circuit Judge.

*441In 2002, thirty-six-year-old Vicki Bramlett died from complications following routine surgery. Mrs. Bramlett's family sued Dr. Benny Phillips, her treating physician. Dr. Phillips's malpractice insurer, the Medical Protective Company of Fort Wayne, Indiana ("MedPro"), twice refused to settle the case for $200,000, Dr. Phillips's insurance policy limit. At trial, a jury awarded a $14 million verdict against Dr. Phillips and other defendants. The Supreme Court of Texas later capped Dr. Phillips's liability, and Mrs. Bramlett's family sued MedPro for the excess verdict. MedPro eventually settled with the family.

MedPro was insured by American International Specialty Lines Insurance Company, now known as AIG Specialty Insurance Company ("AISLIC"), for claims made against it. AISLIC declined to cover MedPro's settlement with Mrs. Bramlett's family. When MedPro sued, the parties ultimately cross-moved for summary judgment. The district court granted summary judgment for AISLIC, concluding that coverage was excluded under the AISLIC policy because MedPro should have foreseen the Bramlett family's claim before contracting with AISLIC. Because there is a genuine issue of material fact regarding whether MedPro should have settled with the Bramletts for $200,000, we affirm in part and reverse in part.

I. Background

A. The Bramlett Lawsuits

In late October 2002, in Lubbock, Texas, Dr. Benny Phillips performed a laparoscopic hysterectomy on Vicki Bramlett, a thirty-six-year-old mother and wife. Following the surgery, while still hospitalized, Mrs. Bramlett suffered internal bleeding. She was rushed into surgery, but she died four days later after being removed from life support.

In May 2003, Mrs. Bramlett's husband and children filed a wrongful death lawsuit against Dr. Phillips, his clinic (Lubbock Gynecologic Oncology Associates), Covenant Healthcare System (where Mrs. Bramlett had been hospitalized), and Covenant's nurses. Dr. Phillips held a $200,000 healthcare professional liability insurance policy with MedPro, and he notified MedPro of the lawsuit. In November 2003, the hospital settled with the Bramletts for approximately $2.3 million, leaving only Dr. Phillips and his clinic remaining in the suit.

On December 17, 2003, the Bramletts wrote to Dr. Phillips's attorney, Benjamin H. Davidson, II, making what is known in Texas as a Stowers demand. The Stowers doctrine comes from G.A. Stowers Furniture Co. v. Am. Indem. Co. , 15 S.W.2d 544 (Tex. Comm'n App. 1929, holding approved), and provides that if a plaintiff makes a demand to an insurer that is within the insured's policy limit and that a reasonably prudent insurer would accept, but the insurer rejects the demand, the insurer will later be liable for any amount awarded over the policy limit. See also Phillips v. Bramlett , 288 S.W.3d 876, 879 (Tex. 2009). The Bramletts offered to settle the case for Dr. Phillips's policy limit, $200,000. MedPro did not settle with the Bramletts. Discovery was still pending at the time, and MedPro wanted to wait *442and see what information would be unearthed during discovery.

The record reflects that, as early as January 5, 2004, MedPro knew that Dr. Phillips did not attend to Mrs. Bramlett's internal bleeding because he had left the hospital to exercise. MedPro's case notes from this time, however, suggest an understanding that Dr. Phillips had not been informed of concerns regarding Mrs. Bramlett's recovery, and that if he had been informed, he would have immediately acted.

On March 23, 2004, the Bramletts made a second Stowers demand, again offering to settle for the $200,000 policy limit. The Bramletts also sent Dr. Phillips's attorney, Mr. Davidson, an expert report from a doctor at the University of Texas. The expert opined that Dr. Phillips had breached the standard of care by failing to timely follow up on Mrs. Bramlett's abnormal hemoglobin and fluid challenge tests results, and that this breach was a proximate cause of Mrs. Bramlett's death.

On April 12, 2004, Mr. Davidson responded to the second Stowers demand, rejecting it. Mr. Davidson wrote that he believed settlement was premature given that discovery was not complete, particularly because the parties had not yet deposed Mr. Bramlett and the hospital nurses. Mr. Davidson sent this response three days after the expiration of the Stowers settlement offer.

Discovery continued, and in May 2004, Mr. Davidson notified MedPro of defense issues he foresaw in the lawsuit. Notably, it was brought out during discovery that, in the evening following the surgery, Dr. Phillips had received a voicemail notifying him that Mrs. Bramlett's hemoglobin levels had dropped. Despite this voicemail, Dr. Phillips left the hospital to exercise. Had Dr. Phillips gone straight to attend to Mrs. Bramlett rather than going to exercise, she likely would have lived. Even in the face of these facts, Mr. Davidson told MedPro that there was a 60 percent chance that Dr. Phillips's defense would succeed. Mr. Davidson estimated that in the event of an adverse jury verdict, the award for the Bramletts would be approximately $2.5 to $3 million.

Dr. Phillips obtained additional counsel, who held a grimmer outlook on the likelihood of a successful defense. Later in 2004, that attorney, Nevill Manning, wrote to MedPro, stating quite bluntly that he believed "without hesitation ... that a jury of twelve people in Lubbock County, Texas, will almost assuredly conclude that the allegations made against Dr. Phillips and [his clinic] are correct, and, thus, liability may be imposed against them in a substantial proportion." He further noted his concern that MedPro had previously declined the Bramletts' two Stowers demands. Mr. Manning demanded that MedPro settle with the Bramletts rather than proceed with what was likely to be a losing trial. Mr. Davidson also began to change his tune. In January 2005, he advised MedPro that the probability of a successful defense was about 20 percent and an adverse jury verdict was likely to be approximately $3 million.

In February 2005, the Bramletts and MedPro attended a mediation. According to MedPro's case notes, the trial judge ordered the mediation because the Bramletts sought punitive damages against Dr. Phillips and were alleging "Stowers issues" as to MedPro. Prior to the mediation, MedPro made settlement offers to the Bramletts of $100,000, then $200,000. The Bramletts rejected both offers and instead demanded $2.3 million to settle the case, which MedPro rejected. After the mediation, a MedPro claims specialist who attended the mediation emailed the assigned claims specialist and his supervisor. He *443advised that, based on what he had learned at the mediation, an adverse verdict was likely and could be about $3 million. He further noted that MedPro's responses to the Bramletts' two Stowers

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Bluebook (online)
911 F.3d 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/med-protective-co-of-fort-wayne-v-am-intl-specialty-lines-ins-co-ca7-2018.