Medical Assurance Co. v. Dillaplain

929 N.E.2d 1084, 186 Ohio App. 3d 635
CourtOhio Court of Appeals
DecidedMarch 5, 2010
DocketNo. 2009 CA 6
StatusPublished
Cited by1 cases

This text of 929 N.E.2d 1084 (Medical Assurance Co. v. Dillaplain) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Medical Assurance Co. v. Dillaplain, 929 N.E.2d 1084, 186 Ohio App. 3d 635 (Ohio Ct. App. 2010).

Opinions

Froelich, Judge.

{¶ 1} Appellee Robert P. Dillaplain, M.D., was sued in 2005 for malpractice by Jeffrey T. Coleman Jr. and others, in the Greene County Common Pleas Court. Greene C.P. No. 2005 CV 381. The alleged malpractice arose, generally, from obstetrical care occurring in 1993 and 1994. Appellant, the Medical Assurance Company, Inc., proceeded to defend Dillaplain under a reservation of rights but in August 2007 filed a declaratory-judgment action seeking a declaration because of a “previous reported” exclusion in the policy that the insurance company was not required to defend and indemnify him. The issue was submitted on cross-motions for summary judgment, and the trial court adopted the magistrate’s decision finding that Medical Assurance has a duty to defend and indemnify Dillaplain on the malpractice claim. Medical Assurance also filed a motion to amend its declaratory-judgment complaint, which the court denied. We will affirm.

{¶ 2} Medical Assurance issued a liability policy covering Dillaplain with a policy period from January 1, 2002, to January 1, 2003, and with a retroactive date of January 27, 1983. The policy states: “We agree to pay on behalf of each insured all sums which such insured shall become legally obligated to pay as damages because of any medical incident which occurs after the retroactive date applicable to such insured and which is first reported during the policy period.”

{¶ 3} If the analysis were to stop at this point, the doctor was covered since the alleged malpractice occurred after the retroactive date. However, the policy also contains an exclusion (at paragraph III, K), which states: “We will not pay damages because of any of the following, and we will not provide a defense for any suit alleging * * * any medical incident which has been reported to another insurance carrier prior to the first date coverage is provided under this policy; any medical incident which occurred prior to the first date coverage is provided under this policy, if on such date, the insured knew or believed, or had reason to [638]*638know or believe, that such medical incident had occurred; or any other medical incident that occurred during a period in which the insured was not covered under a policy of professional liability insurance.”

{¶ 4} In the definition section, “medical incident” is defined as “[a] single act or omission or a series of related acts or omissions arising out of the rendering of or failure to render professional services to any one person by any insured or any person for whose acts or omissions an insured is legally responsible which results or is likely to result in damages.* * * [F]or purposes of this definition, treatment of mother and fetus (or fetuses) from conception through postpartum care constitutes a single medical incident, and a continuing course of professional services relating to substantially the same medical condition constitutes a single medical incident.”

{¶ 5} Additionally, there is a reporting endorsement, with an effective date of January 1, 2003, a termination date of January 1, 2003, and a retroactive date of January 27, 1983, that states: “This endorsement amends the Professional Liability Coverage Part of the policy. In consideration of an additional premium of $0.00 the insured physician(s) named below shall be covered, under the terms and conditions of the policy, for any medical incident which occurred on or after the retroactive date applicable to each insured physician, as stated below, and prior to the above-stated Termination Date, but which is first reported after such Termination Date.”

{¶ 6} In 1995, Dillaplain was given notice, by way of a 180-day letter, that the individuals who later became the plaintiffs in Greene County Common Pleas No. 2005 CV 381 were considering bringing an action against him for his professional care and treatment. Dillaplain was insured with the P.I.E. Mutual Insurance Company at that time, and he reported this letter to P.I.E. no later than March 17, 1995.

{¶ 7} Medical Assurance argues that coverage is excluded since the medical incident had been reported to another insurance company in 1995, which was “prior to the first date coverage is provided” of January 1, 2002. Medical Assurance further argues that the reporting endorsement does not extend coverage since it only extends coverage “under the terms and conditions of the policy” and that, under the terms of the policy, coverage is excluded. Dillaplain argues that the “first date coverage is provided” is January 27, 1983, and that, therefore, any exclusion is not applicable.

I

First Assignment of Error

{¶ 8} “The trial court erred when it granted the intervening defendants’ cross motions for summary judgment, denied plaintiff medical assurance’s motion for [639]*639summary judgment, and declared that Medical Assurance owes Dr. Dillaplain a duty to defend and indemnify the underlying Coleman lawsuit.”

{¶ 9} When reviewing the trial court’s decision on a motion for summary judgment, an appellate court’s review is de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. “De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence to determine whether as a matter of law no genuine issues exist for trial.” Brewer v. Cleveland City Schools Bd. of Edn. (1997), 122 Ohio App.3d 378, 383, 701 N.E.2d 1023, citing Dupler v. Mansfield Journal Co. (1980), 64 Ohio St.2d 116, 119-120, 18 O.O.3d 354, 413 N.E.2d 1187. Therefore, the trial court’s decision is not granted any deference by the reviewing appellate court with respect to issues of law presented in the appeal. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153.

{¶ 10} A policy of liability insurance imposes a duty on the insurer to defend and indemnify the insured against claims of persons arising out of an occurrence of an insured risk that creates potential legal liability in the insured. That duty is generally described as a duty of “coverage.” An “exclusion” is an “insurance policy provision that excepts certain events or conditions from coverage.” Black’s Law Dictionary (7th Ed.Rev.1999) 585-586. Therefore, an exclusion applies only to an insured risk that the policy otherwise covers.

{¶ 11} The risk insured by the Medical Assurance policy is Dillaplain’s potential legal liability arising from a “medical incident” that occurred on or after January 27, 1983.

{¶ 12} In construing the terms of exclusions in an insurance policy, courts are guided by certain rules of construction, and the insurer has the burden of proving that any policy exclusions deny coverage under the policy. Continental Ins. Co. v. Louis Marx Co., Inc. (1980), 64 Ohio St.2d 399, 401, 18 O.O.3d 539, 415 N.E.2d 315. “Where a policy of insurance prepared by an [insurance company] provides generally for certain coverage, exclusions from such coverage must be expressly provided for or must arise by necessary implication from the words used in the policy.” Butche v. Ohio Cas. Ins. Co. (1962), 174 Ohio St. 144, 21 O.O.2d 418, 187 N.E.2d 20, syllabus.

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Bluebook (online)
929 N.E.2d 1084, 186 Ohio App. 3d 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/medical-assurance-co-v-dillaplain-ohioctapp-2010.